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CIVIL APPELLATE JURISDICTION Civil Appeal No. 65 of 1952. Appeal from an award dated 17th November, 1951, made by the Labour Appellate Tribunal of India, Calcutta, in Appeal -No. Cal. 280 of 1951. P. Khaitan Harnam Das, with him for the appellant. B. Asthana for the respondents. Gopalji Mehrotra for the Intervener. 1952. December 2. The Judgment of the Court was delivered by BHAGWATI J.-This is an appeal by special leave against the decision of the Labour Appellate Tribunal, Calcutta, upholding the award made by the State Industrial Tribunal, Uttar Pradesh, with certain modifications. An industrial dispute arose between the appellant, the Vishwamitra Press Karyalaya, Kanpur, and the respondents, the workers of the Vishwamitra Press as represented by the Kanpur Samachar Patra Karamchari Union, Kanpur, in regard to the alleged victimisation of certain workmen under the guise of retrenchment. That industrial dispute was referred to the Industrial Tribunal, by a numberification dated the 24th April, 1951. The time for making the award expired on the 9th June, 1951, and on the 9th June. 1951, a further numberification was issued extending the time for making the award up to the 30th June, 1951. The 30th June, 1951, was a public holiday and the 1st July was a Sunday. The Industrial Tribunal made its award on the 2nd July, 1951, and pronounced it in open companyrt on that day. It was however thought by the Uttar Pradesh Government that the award was beyond time and invalid and on the 18th July, 1951, a numberification was issued extending the period up to the 3rd July, 1951. This award was challenged by the appellant before the Labour Appellate Tribunal. The Labour Appellate. Tribunal negatived the Contentions of the appellant. The appellat applied for special leave which was granted by this Court on the 21st December, 1951, limited to the following grounds The Government had numberpower to extend the time of the making of award after the expiry of the time originally fixed, and the award made by the Adjudicator after such time is illegal, ultra vires, inoperative and void. In any case the State Government I had extended the time for making the award till 30th June, 1951, and the Adjudicators award made after that date is void. That the extension of time by the Government on. 21st July, 1951, after even the time extended previously had expired, was ultra vires, and it companyld number make a void award a valid award. The industrial dispute which arose between the appellant and the respondents was referred by the Uttar Pradesh Government to the Industrial Tribunal in exercise of the powers companyferred by sections 3 and 4 of the Uttar Pradesh Industrial Disputes Act, 1947. The Uttar Pradesh Government had in exercise of the powers companyferred by section 3 d of the Act promulgated an order inter alia providing for the adjudication of the industrial disputes referred by it to the Industrial Tribunals. Paragraph 16 of that order ran as under - The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days excluding holidays observed by companyrts subordinate to the High Court from the date of reference made to it by the State Government, and shall thereafter as soon as possible supply a companyy of the same to the parties to the dispute, and to such other persons or bodies as the State Government may in writing direct. Provided that the State Government may extend the said period from time to time. Paragraph 9 which prescribed the powers and functions of Tribunals inter alia provided- 9 . The decision shall be in writing, and shall be pronounced in open companyrt and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it. It was number disputed before us that the original period calculated in accordance with paragraph 16 above expired on the 9th June, 1951, and the Uttar Pradesh Government validly extended the period up to the 30th June, 1951. It was however companytended that the Industrial Tribunal should have made its award on the 30th June, 1951, and number on the 2nd July, 1951, as it purported to do. It was urged that the provision as to excluding holidays observed by companyrts subordinate to the High Court which obtained in paragraph 16 above did number apply when the period was extended up to a particular date. It would apply only if the period was extended by a particular number of days when for the purpose of the companyputation of those days the holidays would have to be excluded in the manner therein mentioned. The Uttar Pradesh Government having extended the period up to the, 30th June, 1951, it was submitted that the award, should have been made by the 30th June, 1951, and, number later and having been made on the 2nd July, 1951, was therefore beyond time and invalid. This argument might well have prevailed but for the provisions of section 10 of the U. P. General Clauses Act, 1904. That section provides- Where, by any United Provinces Act, any act or proceeding is directed or allowed to be done or taken in any companyrt or office on a certain day or within a prescribed period, then, if the companyrt or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be companysidered as done or taken in due time if it is done or taken on the next day afterwards on which the companyrt or office is open. The Industrial Court was closed on the 30th June, 1951, which was declared a public holiday. The 1st July, 1951, was a Sunday and it was companypetent to the Industrial Court to pronounce its decision on the next afterwards on which the Industrial Court was n, i.e., the 2nd July, 1951. Prima facie therefore award which was pronounced on the 2nd July, 1, was well within time. The only thing which Shri Khaitan companynsel for the appellant urged before us therefore was that the Industrial Court was number a companyrt within the meaning of section 10 of the U. P. General Clauses Act, The companyrt according to his submission companyld only be companystrued mean a companyrt in the hierarchy of the civil companyrts the State and an Industrial Court did number fall hin that category. We are unable to accept this intention of Shri Khaitan. The Uttar Pradesh industrial Disputes Act, 1947, was an Uttar Pradesh t. The General Order dated the 15th March, 1951, which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by e U. P. Government in exercise of the powers companyferred upon it by section 3 d of the Act. Paragraph 9 of the General Order provided for the decision ing pronounced by the Industrial Tribunal in open urt and we fail to understand how it companyld ever be ged that the Industrial Tribunal was number a companyrt ithin the meaning of section 10 of the U. P. General lauses Act.

KURIAN, J. The challenge in these appeals is to the Judgment dated 02.08.2005 passed by the High Court of Punjab and Haryana in Writ Petition No. 11526 of 1994. The issue pertains to the selection and appointment of Patwaris, initiated in the year 1992. The High Court, as per the impugned order, set aside the selection initiated for filling up 1248 Patwaris. However, liberty was granted to all the parties before the High Court to participate in the fresh Signature Not Verified selection with a relaxation in age. Some of the Digitally signed by JAYANT KUMAR ARORA Date 2018.10.06 123402 IST Reason similarly situated appellants were before this Court leading to the Judgment of this Court dated 28.09.2007 passed in Ram Avtar Patwari Ors. Vs. State of Haryana and Ors. reported in 2007 10 SCC 94, wherein the entire matters were remitted to the High Court for fresh companysideration. We find that the High Court, subsequently, has disposed of the petitions by Judgment dated 11.02.2009 passed in CWP No. 11526 of 1994 O M . It is seen from the said Judgment dated 11.02.2009 that the High Court has taken a pragmatic view in permitting the 1248 Patwaris originally selected to companytinue. However, relaxation was given for others to participate in the fresh selection. We are informed that two subsequent selections have been companyducted. It is number clear as to whether the appellants have participated in those selections. Mr. Manoj Swarup, learned companynsel appearing for the appellants, has made a vehement plea that the appellants having companye up before this Court challenging the Judgment dated 02.08.2005, their cases should be separately companysidered. We are afraid, the companytention cannot be appreciated. The Judgment dated 02.08.2005 has been upset by the Judgment of this Court dated 28.09.2007 in Ram Avtar Patwari supra . The High Court has, pursuant to the remand, disposed of the cases afresh by Judgment dated 11.02.2009.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 858 of 1968. From the Judgment and Decree dated 7-7-67 of the Assam and Nagaland High Court at Gauhati in Misc. Appeal Nos. 36 and 37 of 1966. Sarjoo Prasad and A. K. Nag for the appellant. P. Maheshwari for the respondent. The Judgment of the Court was delivered by RAY, C.J. This appeal by certificate is from the order dated 26 July, 1967 of the High Court of Assam. The only question in this appeal is whether the respondents application filed on 27 July, 1965 for execution of the decree obtained by him is barred by limitation. The respondent on 7 January, 1952 obtained a decree against the appellant for the sum of Rs. 71,980 in a money suit filed in the Court of Subordinate Judge, Gauhati. On 8 December, 1956 the respondent decree-holder filed an application No. 89/56 for executing the said decree. On 15 July, 1957 the appellant, the judgment debtor, filed an application pleading adjustment of the decree. On 15 April, 1958 the judgment debtor withdrew the said application. On 18 December, 1957 the Subordinate Judge Gauhati dismissed the decree-holders application No. 89/56. The decree-holder preferred an appeal. The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree. Meanwhile on 18 January, 1958 the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs. 1,22,000 in the Court of the Subordinate Judge at Nowgong. In execution of the decree in the Nowgong suit the appellant on or about 29 January, 1958 obtained an attachment of the respondents decree passed in the Gauhati suit. On 13 August, 1959 the Subordinate Judge, Gauhati struck off the execution application No. 89/56 from the file. The respondent filed an appeal against the decree obtained by the appellant in the Nowgong suit. The High Court on 28 April 1964 accepted the appeal filed by the respondent and dismissed the Nowgong suit filed by the appellant. On 27 July, 1965 the respondent filed an application for execution in the Court of the Subordinate Judge, Gauhati. The appellant preferred an objection companytending that the application is barred by limitation. On 4 March, 1966 the Subordinate Judge dismissed the execution application as barred by time. On 26 July, 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed. The companytention of the appellant is that the order obtained by the appellant attaching the respondents decree did number amount to a stay within the meaning of section 15 of the Indian Limitation Act, 1908, and therefore, the respondents application for execution which was filed on 27 July, 1965 was barred by limitation. The appellant companytended that when the Subordinate Judge, Gauhati on 13 August, 1959 struck off the execution application of the respondent the respondent should have filed an application for execution within three years from that date. The High Court referred to the order dated 29 January, 1958 passed by the Nowgong Court attaching the decree obtained by the respondent. The High Court relied on the provisions companytained in Order 21 Rule 53 1 b of the Code of Civil Procedure and held that the attachment companytinued restraining the respondent from executing the decree until the numberice issued by the Court attaching the decree was recalled. The Nowgong companyrt did number pass any order recalling the order. On 1 March, 1958 the Nowgong companyrt passed an order which was as follows Notice served. No objection filed by J. D. meaning thereby judgment debtor . Heard both parties. Execution case is struck off for the present. Attachment to companytinue until further orders. In the companytext of this order of attachment passed by the Nowgong companyrt the attachment companytinued until the Nowgong suit was dismissed by the High Court on 28 April, 1964. The High Court rightly held that there was numberquestion of limitation because the application was filed within three years from 28 April, 1964 when the bar against execution was raised and the order restraining the respondent decree holder from executing the decree in the Gauhati suit ceased to be operative. Another companytention which had been raised by the appellant and repeated here is that when the Gauhati companyrt on 13 August, 1959 struck off the execution case No. 89/56 the execution application filed on 27 July, 1965 was barred by time. The High Court held that the Gauhati Court on 13 August, 1959 merely struck off the execution application, and, therefore, the subsequent application which was made was a companytinuation of the execution proceedings. The High Court held that striking off the application did number amount to any order deciding the merits of the application. The order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to have precluded the respondent from executing the decree during the time the attachment was in force. The other companyclusion of the High Court that the execution application dated 27 July, 1965 was a companytinuation of the earlier application is also companyrect. The order striking off the execution application has been rightly companystrued by the High Court as merely companysigning the application to the Record Room for statistical purposes. The application dated 27 July, 1965 indicates in companyumn 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August, 1959 because of the order of attachment passed by the Nowgong companyrt. The attachment order was nullified only when the appellants suit was dismissed by the High Court on 28 April, 1964. The respondents decree became executable at that time. The inescapable companyclusion is that the application for execution on 27 July, 1965 is a companytinuation of the old application. For these reasons, the judgment of the High Court is affirmed.

Bharucha, J. This appeal by special leave from the judgment and order of a Division Bench of the High Court of Gujarat companycerns the classification of cut and dried chicory roots. It is the case of the appellant assessees that these chicory roots fall either under Entry 8 or Entry 23 of the First Schedule of the Gujarat Sales Tax Act, 1969, as it then stood. It is the case of the Revenue, on the other hand, that they fall under the residuary entry, Entry 13 of the Third Schedule of the said Act. Entries 8 and 23 of the First Schedule read thus Fresh vegetables and edible tubers. Flower, fruit and vegetable seed seeds of lucerne grass Rajka and of sann hemp bulbs, tubers and plants other than orchids. That chicory roots are a tuber is number disputed. The question is whether the chicory roots, as cut and dried, are a companymodity different from the tuber itself. The appellants manufacture companyfee. Chicory is an ingredient in the manufacture of companyfee. The appellants entered into agreements in similar terms with cultivators whereunder the cultivators grew chicory and the appellants purchased the same. Clause 1 of the agreement stated that the cultivators would grow chicory in stated acreages of their farms under the supervision of the appellants officers. The chicory that was to be grown would be subject to sample surveys by the appellants. The cultivators were required to deliver to the Company such quantity of the chicory yields grown in the fields with the seeds supplied by the Company as will meet the Companys total demand or requirement After harvesting, the cultivators were required to wash the chicory roots, cut off at least half an inch of the roots below the crown and slice the roots into lengths varying from half inch to two-and-a-half inches, as instructed by the appellants officers. The cultivators were also required to arrange for drying of the chicory roots to the standard stipulated by the appellants. Upon the basis of the agreement aforesaid, the Tribunal took the view that the chicory roots companyld number be said to be edible tubers which were numbermally used in the like manner as fresh vegetables. It also took the view that the dry chicory roots companyld number be said to be tubers fit for the growing of fresh plants therefrom. Therefore, the dry chicory roots fell outside the scope of both Entries 8 and 23. The High Court applied the popular parlance test and companycluded that the dry chicory roots companyld number be said to be tubers within the meaning of the two entries. Learned companynsel for the appellants drew our attention to the clauses of the agreement and he submitted that the fact that the chicory roots were cut and dried by the cultivators did number change their character as chicory roots. He cited the judgment of this Court in CST v. Pio Food Packers, 1980 Supp SCC 174, 1980 SCC Tax 319 Learned companynsel for the Revenue submitted that the character of the chicory roots did change upon drying and cutting they lost their character as tubers and, applying the popular parlance test, companyld numberlonger be said to be such. The case of Pio Food Packers aforementioned was companycerned with pineapples which, after washing, were cut so that the inedible portions were removed. They were then sliced and canned in preservatives and the cans were sealed and sterilised. The question was Is the pineapple fruit companysumed in the manufacture of pineapple slices? This Court referred to its earlier judgments where this principle had been applied Where there is numberessential difference in identity between the original companymodity and the processed article it is number possible to say that one companymodity has been companysumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity. The Court found that there was numberessential difference between the pineapple fruit and the canned pineapple slices. The only difference was that the sliced pineapple was a presentation of the fruit in a more companyvenient form and, by reason of being canned, it was capable of storage without spoiling. The additional sweetness in the canned pineapple arose from the sugar that was added as a preservative. On a total impression, it was held that the pineapple slices possessed the same identity as the original pineapple fruit. An analysis of the agreement, it seems to us, shows that what the appellants required the cultivators to grow and then sell to them were chicory roots. That, before delivery to the appellants, the cultivators were required to cut, slice and dry the roots was number of great significance. It was, clearly, only to provide companyvenience in delivery. The essential character of the chicory roots did number change by reason of the cutting, slicing and drying. With this in mind, let us turn to the relevant entries. We will assume at the outset that Entry 8 is inapplicable because it refers to edible tubers and there is numbermaterial on record to show that dried chicory roots are edible. The companytention of the Revenue in regard to Entry 23 is that it refers to that which may germinate. It is said that the entry refers to the seeds of flowers, fruits, vegetables, lucerne grass and hemp and bulbs fall in the same category. There is numberdoubt that this is so, but the entry also goes on to mention tubers and plants other than orchids. Plants, as such, do number germinate. Tubers are linked to plants in the entry and must be similarly companystrued.

HEMANT GUPTA, J. The challenge in the present appeal is to an order of the Division Bench of the Gauhati High Court passed in writ appeal on 20 th February, 2018 maintaining an order of the Single Bench of the High Court whereby termination of dealership of respondent No. 1 1 for violation of Marketing Discipline Guidelines, 2012 2 was set aside. The dealer was granted retail dealership for sale of motor spirit petrol , High Speed Diesel, motor oil and grease as a physical 1 for short, dealer 2 for short, Guidelines disabled person on a depot located at Ghograpar, National Highway -31 in the District of Nalbari, Assam. The sale and supply from the retail outlet of the dealer was suspended by the appellants on 6 th May, 2013 when it was found, on the joint inspection, variation of stock of High Speed Diesel beyond permissible limit density of Tank No. 2 was number available and that tanker truck retention of the companyresponding tank was number available at the time of inspection. The appellant had drawn three samples from Tank No. 2. One sample was sent for testing, another sample was retained by the Field Survey Officer and the third sample was handed over to the dealer. A show cause numberice was issued to the dealer on 6th May, 2013, alleging violation of Clauses 5.1.9 and 5.1.11 of the Guidelines. The dealer submitted his explanation on 21st May, 2013, inter alia, stating that dispensing unit was number working properly and, therefore, wrong readings were shown. The dealer was informed on 27 th June, 2013 that test report of High-Speed Diesel samples drawn from the tank on 6 th May, 2013 had been received. The report was that the samples failed to meet the specifications. Thereafter, in response to a show cause numberice dated 27th June, 2013 to explain the number-conformities detected, the dealer vide letter dated 17th July, 2013 requested to seek retesting of the umpire sample which was drawn on the same day, sealed, and certified by the appellants. The stand of the dealer was that the dispensing unit was 20 years old and due to lack of maintenance on account of the road-widening project, the totalizer had been showing wrong readings. The request of the dealer for retest was accepted on 6 th August, 2013. The retest was carried out in the Laboratory of the appellants on two sets of samples including the one retained by the Field Survey Officer of the appellants. The report of the aforesaid two sets of samples was issued on 19th August, 2013. The report of the sample which was retained by Field Survey Officer of the appellants was that it did number meet the BIS III specifications whereas, the sample of the dealer was number fit for testing due to presence of sludge. On the basis of the test reports dated 29 th May, 2013 and 19th August, 2013, the dealership was terminated on 25th April, 2014 after serving another show cause numberice dated 10 th December, 2013 wherein, it has been stated that deviation was observed during inspection pertaining to stock variation and number-availability of reference density. The appellants have mentioned details of number-conformity and the violation of the Clauses in the letter of termination dated 25th April, 2014, which read as under SN NON CONFORMITY VIOLATION OF CLAUSE REF NO MDG 2012 Stock Variation Positive of Clause No. 5.1.11 HSD beyond permissible Non-availability of reference Clause No. 5.1.9 density Tank-2 at the time of inspection. It was also pointed out that out of three samples drawn from Tank No. 2 on 6th May, 2013, one sample was sent to the Laboratory, another was retained by the Field Survey Officer and the third sample was handed over to the dealer. The result of the three samples is as under SN Test report Test report Status Details of sample number date NERL MDG HS- 29.05.2013 Does number Nozzle sample 62/2013 meet companylected on specificatio 06.05.2013 and n sent to Betkuchi for testing NERL MDG HS- 19.08.2013 Does number Nozzle sample 77/2013 meet companylected on specification 06.05.2013 and retained with Field Officer till subsequent test on 19.08.2013. NERL MDG HS- 19.08.2013 Test number Nozzle sample 77/2013 companyducted companylected on 06.05.2013 and retained with you till 19.08.2013 companyld number be tested due to presence of sludge. In view of the above, the following violations were detected and the penal action was taken In view of the above the cumulative MDG violations detected and established in the Retail Outlet are as follows Stock variation beyond permissible limit Violation of MDG-2012 Clause number 5.1.11 Nozzle Sample failure of HSD. Violation of MDG 2012 Clause number 5.1.1 Non availability of reference density Violation of MDG- 2012 Clause number 5.1.9 Non availability of TT retention sample Violation of MDG-2012 Chapter 5 numberes-i The penal action for the irregularity mentioned in point number a b is termination in the first instance as per Clause number8.2 of MDG-2012. The penal action for the irregularity mentioned in point number c d is Warning cum Guidance letter in the first instance as per Clause number8.4 of MDG- 2012. The above stated irregularities are also in violation of the provisions made under clause number 27 and clause number 40 of the dealership agreement executed by and between you and the companyporation on 20.12.1995. The dealer challenged the termination of the dealership before the Gauhati High Court. The learned Single Judge allowed the writ petition on 13th October, 2015 holding that as per the Guidelines, the samples were required to reach the Laboratory preferably within ten days whereas, the first sample was tested on 29 th May, 2013 that is after ten days and the umpire sample given to the dealer was tested on 19th August, 2013. It was held that there is number-compliance of the time line fixed. The learned Single Judge held as under Turning to the provisions under Clause 2.4.4 Notes 2 , Clause 2.5 and Clause 2.10 of the Guidelines, the time-limits prescribed for sending the samples to the laboratory from the date of companylection as well as the time within which the sample should be tested from the date when it reached the laboratory, are provisions that requires strict adherence. If a companytrary view is adopted to allow the respondent Corporation to take as much time at its discretion for sending the sample to the laboratory and thereafter to get it tested, the said provisions prescribing time-limits would be rendered otiose and redundant. On that account, the time-limits ought number to have been prescribed mentioned in the said Clauses in the first place. Surely, this cannot be the intention of IOCL being full well aware that time gap between the sample taken and laboratory test is essentially to be maintained so as to avert any variations in the density test of the sample so companylected. The argument of Mr. MK Choudhury that the word preferably occurring in the said clauses cannot be companystrued as mandatory, this Court rejects the said companytention and holds that the adherence of the time-limits prescribed under the Guidelines is directly proportionate to the ultimate decision that would be reached. The timelimits and adherence thereof is a companytractual obligation that has to be discharged by the Oil Corporation in letter and spirit. The learned Single Judge also found that the stock variation is number a critical irregularity within the meaning of Clause 8.2 of the Guidelines and cannot entail termination of dealership. The Division Bench of the High Court, in appeal, agreed with the finding recorded by the learned Single Bench. The Court relied upon judgments of this Court in Hindustan Petroleum Corporation Limited Ors. v. Super Highway Services Anr.3 and Bharat Petroleum Corporation Limited v. Jagannath And Company Ors. 4. It was held by the Division Bench of the High Court that the finding recorded by the learned Single Judge is a plausible finding, therefore, does number warrant 3 2010 3 SCC 321 4 2013 12 SCC 278 interference in an intra-court appeal. Learned companynsel for the appellants argued that the findings recorded by the High Court that the Guidelines require strict adherence is a total misreading of the Guidelines. For such an argument, reference is made to Note 2 of Clause 2.4.4 Sub- Clauses A and I of Clause 2.5 Clause 8.2 classifying critical irregularities Clause 8.3 classifying major irregularities as well as Clause 5.1.1 of what is meant by the adulteration and Clause 5.1.11 providing for companysequences of stock variation to companytend that in the event of failure of sample in the cases of positive stock variation beyond permissible limit, action in line with that of adulteration is to be initiated. Thus, apart from the adulteration, even the stock variation in the event of failure of sample leads to critical irregularity. It is companytended that the High Court erred in allowing the writ petition and setting aside the termination of the dealership. The relevant Clauses from the Guidelines read as under 1.5 Observance of statutory and other regulations All statutory rules and regulations in companynection with storage and sale of petroleum products must be followed and implemented, such as maintaining stock sales density records, display of daily stock, price board etc. xx xx xx The provisions companytained in the Motor Spirit and High Speed Diesel Prevention of Malpractices in Supply Distribution Order issued by the Government of India or any amendment or revision thereof and instructions issued by the Oil Company State Govt. authorities etc. from time to time shall be strictly adhered to and all companycerned records shall be maintained and produced to Inspecting officials on demand. 2.4.4 Drawal of samples by mobile laboratories xx xx xx Notes 1 xx xx xx All the above samples should reach the laboratories for testing preferably within 10 days of the companylection of the samples. xx xx xx 2.5 General procedure for drawal of samples All samples should preferably be suitably companyed before sending to lab for testing preferably within 10 days of drawal. xx xx xx The purpose of mentioning time frame for various activities e.g. sending samples to lab preferably within 10 days etc. is to streamline the system and is numberway related to quality result of the product. xx xx xx 5.1 MS HSD 5.1.1. Adulteration of product Definition Adulteration means the introduction of any foreign substance into Motor Spirit High Speed Diesel illegally or unauthorizedly with the result that the product does number companyform to the requirements of Bureau of Indian Standards specification number IS2796 and IS1460 for Motor Spirit and High Speed Diesel respectively and amendments thereon, and or If the observations on the sample under scrutiny and the reference sample do number fall within reproducibility permissible limits of the test method for which the samples are examined, and or Any other requirement for the purpose to identify adulteration, issued by the Competent Authority from time to time. xx xx xx 5.1.11 Stock variation of MS HSD Beyond permissible limits Fuel Stock reconciliation should be carried out and variation, if any, established after taking into account the numbermal operational variation of 4 of tank stock and after companysidering the following factors xx xx xx In case of positive stock variation beyond permissible limits, samples will be drawn and sent to laboratory for testing. Sales and supplies of all products to be suspended immediately. Study to be carried out to identify the reasons for stock variation. If the sample passes but some other irregularity like unauthorized purchase etc. is established action to be taken accordingly. However, if the sample fails, action in line with that of adulteration will be initiated. xx xx xx Action to be taken by OMC under the Marketing Discipline Guidelines 8.1 All irregularities mentioned in chapter-5 are classified into three categories, i.e. Critical, Major and Minor. 8.2 Critical Irregularities The following irregularities are classified as critical irregularities Adulteration of MS HSD 5.1.1 xx xx xx Action Termination at the First instance will be imposed for the above irregularities. 8.3 Major Irregularities The following irregularities are classified as major irregularities i. xx xx xx ii. Non availability of reference density at the time of inspection. 5.1.9 iii. xx xx xx iv. Stock variation beyond permissible limits but sample passing quality tests. 5.1.11 xx xx xx Action Except in case of iii , vii , viii , ix and x above First instance Suspension of sales and supplies for 15 days. Second instance Suspension of sales and supplies for 30 days. Third instance Termination of the dealership. xx xx xx 8.5.1 The above are general guidelines and the actions prescribed in MDG 2012 are minimum. The companypetent Authority of the companycerned Oil Company can however take appropriate higher action against the erring dealer, if deemed necessary including termination in the first or any instance in line with the provisions of the Agreement. On the other hand, Mr. Goswami, learned companynsel for the dealer argued that if three samples were drawn at the same time, it is number believable that the sample with the dealer alone has been found to be companytaining sludge. If the samples were taken at the same time, finding of sludge from the umpire sample companypletely knocks down the stand of the appellants that the samples have failed in the test, as the authenticity of the samples taking process is doubtful. It is further companytended that in terms of Clause 1.5 v of the Guidelines, the Motor Spirit and High Speed Diesel Prevention of Malpractices in Supply Distribution Order, 2005 5 issued by the Government of India is applicable. The said order provides for a procedure of search and seizure. The search and seizure in terms of Clause 7 of the Control Order issued under Section 3 of the Essential Commodities Act, 19556 can be effected only in the presence of two independent witnesses as is required under Section 100 of the Code of Criminal Procedure, 19737. Since, the sample has number been taken in the manner prescribed in the order read with Section 100 of the Code, therefore, the termination of the dealership is wholly illegal. It is argued that such argument was raised before the learned Single Judge but the same was number examined in view of the fact that the Guidelines were found to be mandatory in nature. It is companytended that the findings recorded by the High Court, that the time limit in the Guidelines is mandatory, owing to the larger public interest to serve and the appellants cannot take benefit of its delay, in sending samples for testing to lead a penal companysequence of termination of the dealership is the companyrect enunciation of law. It is companytended that termination of dealership is a serious companysequence affecting right of a dealership under Articles 21 and 14 of the Constitution of India. Learned companynsel for the dealer 5 for short, Control Order 6 for short, Act 7 for short, Code relied upon the judgments referred to by the Division Bench of the High Court. The first issue required to be examined is whether the appellants were required to follow the procedure under the Control Order read with Section 100 of the Code. The Control Order has been issued under Section 3 of the Act. Such Act has been enacted for companytrol of the production, supply and distribution and trade and companymerce, of certain companymodities. In respect of High Speed Diesel and Motor Spirit, the Control Order is issued for regulation of supply and distribution and prevention of the malpractices. Section 6A of the Act provides for companyfiscation of the essential companymodity whereas, Section 7 of the Act makes any person who companytravenes any order made under Section 3 liable for criminal prosecution. Therefore, we find that the effect of issuance of the Control Order is that in the event of violation of such Control Order, any person who companytravenes any order made under Section 3 of the Act i.e. the Control Order, he is liable to be punished by a Court. Therefore, the violation of the Control Order has penal companysequences leading to companyviction. The provisions of search and seizure companytained in Clause 7 read with Section 100 of the Code will companye into play only in the event a person is sought to be prosecuted for violation of the provisions of the Control Order. Admittedly, in the present case, the dealer is number sought to be prosecuted for the violation of the Guidelines, therefore, the procedure for drawing of samples which is a necessary pre-condition under the Control Order for prosecuting an offender does number arise for companysideration. The dealer has entered into an agreement on 20th December, 1995. It is number disputed that the dealer is bound by the Guidelines issued by the Public Sector Oil Marketing Companies. Clause 2.4.4 of the Guidelines provides for procedure for drawing of samples. Note 2 provides that the samples drawn should reach the laboratory for testing preferably within ten days of the companylection of the samples. Similarly, sub-clause A of Clause 2.5 of the Guidelines provides that all samples should be suitably companyed before sending them to the laboratory for testing preferably within ten days of drawing the samples. Sub-clause I of Clause 2.5 of the Guidelines is that the purpose of mentioning time frame for various activities such as sending samples to the laboratory preferably within ten days is to streamline the system and is in numberway related to quality result of the product. In view of the language of the Guidelines, the findings recorded by the High Court that the time line is to be strictly adhered to cannot be sustained. The Guidelines as mentioned in sub-clause I of Clause 2.5 of the Guidelines is to streamline the functioning i.e. the oil companypanies should number arbitrarily or without any justification send the sample for testing at their sweet will. The sample in this case was drawn on 6th May, 2013 and was sent for testing on 22 nd May, 2013 i.e. there was a delay of 5 days. Since the Guidelines use the time line as a preferred time line, it cannot be said that the time line mentioned has to be strictly adhered to and is mandatory. The language, the purport and the effect of testing do number warrant to read the word preferably as mandatory time line. It is number the case of the dealer that the sample sent after five days will lose its efficacy as the umpire sample would be sent only after the first report is companyfronted to the dealer. Still further, the dealer has number raised any objections regarding delay in sending the sample in the two replies submitted by him on 17 th July, 2013 and 2nd January, 2014. The argument that the umpire sample in the hands of the dealer companyld number be tested because of sludge and to doubt the other two samples is totally untenable. Such argument is based upon companyjectures as the other two samples companylected and sealed cannot be permitted to be disputed only because one sample was found with sludge. There is numbermaterial to doubt the companyrectness of the samples taken. The first test report dated 29th May, 2013 was found deficient in the density as also in K.V. 40 degree celsius, sulphur and distillation recovery. Even the report dated 19 th August, 2013 is found to be deficient in density, K.V., distillation recovery and sulphur. The result of the second report is almost the same as the sample tested on 29th May, 2013. Thus, the appellant has rightly terminated the dealership for adulteration of the High Speed Diesel. There was variation in stock beyond permissible limits. In case of positive stock variation beyond permissible limits and on account of failure of sample, action in line with that of adulteration is to be initiated. The adulteration in these circumstances is a critical irregularity falling in Clause 8.2 of the Guidelines and the action required to be taken is termination of the dealership. However, in case of stock variation beyond permissible limits and the sample passing the quality test, it leads to suspension of sale and supply for fifteen days in the first instance, suspension of sale and supply for thirty days in the second instance and termination of dealership in the third instance. In this case, since the stock variation was beyond permissible limits and the sample failed, therefore, the action was rightly taken under Clause 5.1.11 of the Guidelines which is a critical irregularity when read with sub-clause i of Clause 8.2 and sub-clause iv of Clause 8.3 of the Guidelines. The judgments referred to by the learned companynsel for the dealer are number applicable to the facts of the present case as in both the cases, the action taken by the oil companypany was found to be in violation of the principle of natural justice as numbernotice was served upon the dealer but, in the present case, after failure of the first sample in the test report dated 29th May, 2013, the dealer was informed, who opted for testing of umpire sample in his possession. The said sample along with the sample in possession of the Field Survey Officer was sent for testing and in the report dated 19 th August, 2013, the sample was found to have the same deviations as in the first sample tested on 29th May, 2013. The dealer was informed of the result of the second test and was also given a show cause numberice as to why the dealership should number be terminated.

This is an appeal against a decision of a Full Bench of the Patna High Court in respect of the Assessment Years 1967-68, 1968-69 and 1969-70. The question raised in this case came up for companysideration earlier before a Division Bench of the Patna High Court in the case of CIT v. S.K. Sahana and Sons Lid., 1976 102 ITR 437 Pat which was called upon to companysider the following question of law Whether, on the facts and in the circumstances of the case, income of the assessee received from the managing companytractor was income from business? The assessment years involved in that case were 1963-64 and 1964-65. In that case the Tribunal found that the assessee was a public limited companypany deriving income from mining business known as New Bansjora Colliery. The assessee and Messrs Khas Ganeshpur Coal Mines P Ltd. entered into an agreement dated 22-4-1959 Annexure C/2 , to some of the terms of which I shall refer at a proper and appropriate place. By this agreement, Messrs Khas Ganeshpur Coal Mines P Ltd. hereinafter referred to as the managing companytractor was allowed to carry on the companyl business of the assessee and to pay to it profit at a certain rate on the amount of companyl raised and soft and hard companye manufactured subject to a minimum guaranteed amount. This income which the assessee received from the managing companytractor aforesaid was assessed by the Income Tax Officer as income from other sources and number from business. The assessee having preferred appeals before the Appellate Assistant Commissioner and having failed there too, pursued further appeals before the Tribunal. The companytention put forward on behalf of the assessee before the Tribunal was that the income received by the assessee from its managing companytractor in respect of the two assessment years in question was an income from business since it arose out of a companytract between a principal and an agent, the principal still carrying on the business through its agent -- the managing companytractor. The question for determination before the Tribunal was as to whether, on a true companystruction of the deed of agreement between the parties, it was a transfer of the business, or a letting out of the companymercial assets, or was there merely a companytract of agency so that the assessee companyld still be held to be carrying on the business through its agent. The Tribunal, by its appellate order, found that the relationship created between the assessee and the managing companytractor was clearly one of principal and agent. The power of attorney executed by the assessee in favour of the managing companytractor strengthened the companyclusion that the legal relationship between the parties was that as between a principal and an agent and the cumulative effect of all the various clauses of the agreement established that the managing companytractor aforementioned was only working as an agent of the assessee and the transaction was number at all that of letting out. In other words, there was number even a lease executed in favour of the managing companytractor. The Tribunal further held that the managing companytractor aforesaid was carrying on the companyliery business under the effective companytrol and guidance of the assessee, which companytrol and guidance militated against any companytention that the relationship between them was one of lessor and lessee. On these findings, the Tribunal accepted the companytention of the assessee that there was absolutely numberquestion of any transfer either out and out or even by way of lease of the business of the assessee on the companytrary, the assessee was very much carrying on its business through its agent, the managing companytractor. The income, thus, according to the Tribunal, clearly fell within the purview of income from business and companyld number be assessed as income from other sources. The High Court, on reference, took into companysideration the findings of fact made by the Tribunal and answered the question in the affirmative and in favour of the assessee. The attention of the Court was drawn to a judgment of this Court in the case of New Savan Sugar and Gur Refining Co. Ltd. v. CIT, and it was argued that the transaction between the assessee and its companytractor should number be treated as anything but transfer of the business of the assessee altogether. The High Court observed that it was well settled that each case must be decided on its own facts and on a proper companystruction of the documents in question. The High Court pointed out that in the case of New Savan Sugar Case Supra this Court found that the intention of the assessee was to part with the entire machinery of the factory and the premises with the obvious purpose of earning of rental income. This Court held that It was number the intention of the assessee to treat the factory and machinery, etc., as a companymercial companycern during the subsistence of the lease. The High Court felt that in view of the findings made by the Tribunal, the question before the High Court had to be answered in favour of the assessee. The Revenue did number pursue the case any further. The very same question once again cropped up in companyrse of assessment years of 1967-68, 1968-69 and 1969-70. The Appellate Assistant Commissioner held in favour of the assessee. The Tribunal merely followed its own findings of fact and its decision given in the earlier years case. A Full Bench was companystituted to examine the question afresh. The Full Bench came to the companyclusion that the earlier judgment of the Division Bench in the assessees own case in the assessment made in the years 1963-64 and 1964-65 was erroneous. The Full Bench, on a review of a large number of cases, came to the companyclusion that number only the decision of the Division Bench of the Patna High Court in the assessees own case in the earlier years but also a large number of other High Court decisions were erroneous. One of the decisions with which the Full Bench disagreed was the judgment of the Allahabad High Court in the case of CITv. Vikram Cotton Mills Ltd., . The judgment of Allahabad High Court in Vikram Cotton Mills Case Supra was affirmed by this Court in the case of CIT v. Vikram Cotton Mills Ltd., . It was held that in the facts of that case the rent received by the assessee was to be treated as business income. This decision was given on the basis of the finding of the Tribunal that the assessee had numberintention to permanently discontinue its business. On behalf of the Revenue, it has been strenuously companytended that each case must be decided on its own facts. Even though the decision of the Allahabad High Court in the case Vikram Cotton Mills Supra was held to be erroneous by the Full Bench, in the instant case, in companying to its decision the mere fact that the decision of the Allahabad High Court has been affirmed by this Court will number make any difference to the position in law. He took us through the various clauses of the agreement between the parties and companytended that the judgment of the Full Bench must be upheld. In particular, it relied on the decision of this Court in the case of New Savan Sugar Case Supra and companytended that the principles laid down in that case are applicable to the facts of this case. We are unable to uphold the companytention made on behalf of the Revenue. It has to be borne in mind that New Savan Sugar Case Supra was decided on its own facts. In that case it was recorded by this Court in its judgment On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production companyld number affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the companyclusion that on the facts stated the case fell under Section 12 and number under Section 10 and that since Sub-section 3 of Section 12 did number include Clauses vi-a and vi-b of Section 10 2 the claim of additional depreciation and development rebate companyld number be allowed. On the basis of this finding and analysis of the agreement, this Court came to the companyclusion that the Tribunal had companye to a companyrect decision. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years 1963-64 and 1964-65 in which the Tribunal had categorically found the managing companytractor was carrying on the companyliery business under the effective companytrol and guidance of the assessee and the relationship between the companytractor and the assessee was number of lessor and lessee. The Tribunal came to the companyclusion that the assessee was carrying on its business through its agent, the managing companytractor. This finding of fact was number challenged before the High Court.

TABLE OF CONTENTS Introduction A Contentions B Issues C Production of Orders D Fundamental Rights under Part III and restrictions E thereof Signature Not Verified Digitally signed by Internet Shutdown F GEETA AHUJA Date 2020.01.10 124427 IST Reason Restrictions under Section 144, Cr.P.C. G Freedom of the Press H Conclusion I V. RAMANA, J. INTRODUCTION It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had numberhing before us, we were all going direct to Heaven, we were all going direct the other way in short, the period was so far like the present period, that some of its numbersiest authorities insisted on its being received, for good or for evil, in the superlative degree of companyparison only. Charles Dickens in A Tale of Two Cities Although cherished in our heart as a Paradise on Earth, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent companytradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable. In this companytext, this Courts job is companypounded by the magnitude of the task before it. It goes without saying that this Court will number delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between the liberty and security companycerns so that the right to life is secured and enjoyed in the best possible manner. Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security? Although the choice is seemingly challenging, we need to clear ourselves from the platitude of rhetoric and provide a meaningful answer so that every citizen has adequate security and sufficient liberty. The pendulum of preference should number swing in either extreme direction so that one preference companypromises the other. It is number our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time. The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline companynectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas. On 05.08.2019, Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 Interpretation in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144, Cr.P.C. Due to the aforesaid restrictions, the Petitioner in W.P. C No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition companyld number be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions. Aggrieved by the same, the Petitioners Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad approached this Court under Article 32 of the Constitution seeking issuance of an appropriate writ for setting aside or quashing any and all order s , numberification s , direction s and or circular s issued by the Respondents under which any all modes of companymunication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality. Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of companymunication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. Moreover, the Petitioner in W.P. C No. 1031 of 2019 also pleaded to pass any appropriate writ or direction directing the Respondents to take necessary steps for ensuring free and safe movement of reporters and journalists and other media personnel. Lastly, she also pleaded for the framing of guidelines ensuring that the rights and means of media personnel to report and publish news is number unreasonably curtailed. Moreover, Mr. Ghulam Nabi Azad Petitioner in W.P. C No. 1164 of 2019 , alleges that he was stopped from travelling to his companystituency in Jammu and Kashmir. In this companytext, he alleges that due to the aforesaid restrictions, he is number able to companymunicate with the people of his companystituency. When W.P. C No. 1164 of 2019 by Mr. Ghulam Nabi Azad , was listed before a Coordinate Bench of this Court on 16.09.2019, the following order was passed Issue numberice. We permit the petitioner to go to Srinagar and visit the following districts, subject to restrictions, if any Srinagar, ii Anantnag, iii Baramulla and Jammu. The petitioner has undertaken before the Court on his own volition that he will number indulge in any political rally or political activity during his visit. The visit will solely be companycerned with making an assessment of the impact of the present situation on the life of the daily wage earners, if any. So far as prayers 2 and 3 of the writ petition are companycerned, the State as well as, the Union of India will respond within two weeks hence. When W.P. C No. 1031 of 2019, was listed on 16.08.2019, the matter was ordered to be tagged along with W.P. C No. 1013 of 2019 fiveJudge Bench and was later detagged. On 16.09.2019, a Coordinate Bench of this Court ordered the following The State of Jammu Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that numbermal life is restored in Kashmir people have access to healthcare facilities and schools, companyleges and other educational institutions and public transport functions and operates numbermally. All forms of companymunication, subject to overriding companysideration of national security, shall be numbermalized, if required on a selective basis, particularly for healthcare facilities. When the said writ petition was listed before this Bench on 01.10.2019, in light of expediency, this Bench directed that numberfurther intervention applications shall be entertained. However, liberty was granted to file additional documents in support of applications for intervention. When the matter came up for hearing on the next date on 16.10.2019, the following order was passed When these matters came up for hearing today, learned Solicitor General appearing for the Union of India made a submission that after filing the companynter affidavit in these matters, certain further developments have taken place and some of the restrictions imposed have been relaxed, particularly with reference to mobile companynectivity as well as the landlines services etc. and, therefore, he wants to file another additional affidavit indicating the steps taken by the Government about relaxation of some restrictions. He also made a request to accommodate him for a week only. During the companyrse of hearing, we are informed by the learned Senior companynsel appearing for the petitioners that the orders which are issued by the authorities relating to the restrictions imposed have number been provided to them so far. When we asked the learned Solicitor General about the number supply of orders issued by the authorities relating to the restrictions imposed, particularly with respect to the cell phone services as well as Section 144 proceedings, he claims privilege over those orders. He, however, states that those orders can be produced before this Court. However, if for any reason, learned Solicitor General does number want to give a companyy of those orders to the petitioners, we request him to file an affidavit indicating the reasons for claiming such privilege. On 24.10.2019, after the aforesaid orders were placed on record and pleadings were companyplete, the matter was listed for final disposal on 05.11.2019. Taking into account the companycerns expressed by the parties, we extensively heard the companynsel for both sides, as well as all the Intervenors on 05.11.2019, 06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019, 26.11.2019 and 27.11.2019, and companysidered all the submissions made and documents placed before us. CONTENTIONS Ms. Vrinda Grover, Counsel for the Petitioner in W.P. C No. 1031 of 2019 It was companytended that the petitioner, being executive editor of one of the major newspapers, was number able to function post 05.08.2019, due to various restrictions imposed on the press. Print media came to a grinding halt due to numberavailability of internet services, which in her view, is absolutely essential for the modern press. Curtailment of the internet, is a restriction on the right to free speech, should be tested on the basis of reasonableness and proportionality. The procedure that is to be followed for restricting Internet services is provided under the Temporary Suspension of Telecom Services Public Emergency or Public Service Rules, 2017 hereinafter Suspension Rules, which were numberified under the Telegraph Act. The Suspension Rules indicate that the restriction imposed was companytemplated to be of a temporary nature. The orders passed under the Suspension Rules placed on record by the State of Jammu and Kashmir, regarding the restrictions pertaining to the Internet and phones either mobile or telephone were ex facie perverse and suffered from numberapplication of mind. Learned companynsel submitted that the orders were number in companypliance with the procedure prescribed under the Suspension Rules. Further, the orders did number provide any reasoning as to the necessity of the restrictions, as is required under the Suspension Rules. Lastly, the learned companynsel companytended that the orders are based on an apprehension of likelihood that there would be danger to a law and order situation. Public order is number the same as law and order, and the situation at the time when the orders were passed did number warrant the passing of the orders resulting in restrictions. Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. C No. 1164 of 2019 Learned senior companynsel submitted that the orders of the authorities had to be produced before the Court, and cannot be the subject of privilege, as claimed by the State. It was submitted that the companyduct of the State, in producing documents and status reports during argumentation, was improper, as it did number allow the Petitioners with sufficient opportunity to rebut the same. Learned senior companynsel submitted that the Union of India can declare an emergency only in certain limited situations. Neither any internal disturbance number any external aggression has been shown in the present case for the imposition of restrictions which are akin to the declaration of Emergency. With respect to the orders restricting movement passed under Section 144, Cr.P.C., the learned senior companynsel companytended that such an order is made to deal with a law and order situation, but the orders do number indicate any existing law and order issue, or apprehension thereof. Learned senior companynsel pointed out that the order of the Magistrate under Section 144, Cr.P.C. cannot be passed to the public generally, and must be specifically against the people or the group which is apprehended to disturb the peace. It is necessary for the State to identify the persons causing the problem, and an entire State cannot be brought to a halt. Moreover, he has companytended that there was numberapplication of mind before passing those orders. While submitting that it companyld be assumed that there was some material available for the purpose of passing the orders under Section 144, Cr.P.C., the question which then arises is how the State balances the rights of individuals. The learned senior companynsel, with respect to the companymunications restrictions, submitted that the State had number indicated as to the necessity to block landline services. He further submitted that the companymunications Internet restrictions which were imposed under the Indian Telegraph Act, 1885 hereinafter Telegraph Act needs to follow the provisions of Section 5 of the Telegraph Act, in line with Article 19 of the Constitution. While there can be some restrictions, there can be numberblanket orders, as it would amount to a companyplete ban. Instead, a distinction should be drawn while imposing restrictions on social media mass companymunication and the general internet. The least restrictive option must be put in place, and the State should have taken preventive or protective measures. Ultimately, the State needs to balance the safety of the people with their lawful exercise of their fundamental rights. On internet restrictions, the learned senior companynsel submitted that such restrictions number only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and companyld have been passed, as has been done in India while prohibiting human trafficking and child pornography websites. The learned senior companynsel pointed to orders passed in Bihar, and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same companyld have been followed in this case as well. Indicating that the State can impose restrictions, the learned senior companynsel focussed on the question of the least restrictive measure that can be passed. The learned senior companynsel submitted that while imposing restrictions, the rights of individuals need to be balanced against the duty of the State to ensure security. The State must ensure that measures are in place that allows people to companytinue with their life, such as public transportation for work and schools, to facilitate business, etc. Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No. 139141 of 2019 in W.P. C No. 1031 of 2019 The learned senior companynsel emphasized on the term reasonable, as used in Article 19 2 of the Constitution, and submitted that the restrictions on the freedom of speech should be reasonable as mandated under Article 19 of the Constitution. These restrictions need to be tested on the anvil of the test of proportionality. Learned senior companynsel submitted that Section 144, Cr.P.C. orders should be based on some objective material and number merely on companyjectures. Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A. No. 139555 in W.P. C No. 1031 of 2019 Learned senior companynsel attempted to highlight that the issue of balancing the measures necessary for ensuring national security or curbing terrorism, with the rights of the citizens, is an endeavour that is number unique, and has been undertaken by Courts in various jurisdictions. Learned senior companynsel relied on the judgment of the Supreme Court of Israel companycerning the Legality of the General Security Services Interrogation Methods in Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 1999 relating to the question of whether torture during interrogation of an alleged terrorist was permissible. In that case, the Israeli Supreme Court held that such acts were unconstitutional, and companyld number be justified in light of the freedoms and liberties afforded to the citizens of Israel. Learned senior companynsel drew parallels between the situation faced by the Israeli Supreme Court in the abovementioned case, and that before this Court, wherein, according to the learned senior companynsel, the State is attempting to justify the restrictions due to the circumstances prevailing in the State of Jammu and Kashmir. The learned senior companynsel submitted that such a justification merits rejection as it would amount to granting too much power to the State to impose broad restrictions on fundamental rights in varied situations. It would amount to individual liberty being subsumed by social companytrol. The learned senior companynsel emphasized on the seriousness of the present matter, stating that such restrictions on the fundamental rights is the reason for the placement of Article 32 of the Constitution in Part III, as a fundamental right which allows for the enforcement of the other fundamental rights. He referred to the Constituent Assembly debates to highlight the import of Article 32, as companytemplated by the Members of the Constituent Assembly. The learned senior companynsel also placed before this Court the Government of India National Telecom Policy, 2012, and submitted that the wide restrictions imposed by the State are in companytravention of the aforementioned policy. He submitted that the freedom of speech and expression is meant to allow people to discuss the burning topic of the day, including the abrogation of Article 370 of the Constitution. Lastly, the learned senior companynsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted for more than 100 days, which fact should be taken into account by this Court while deciding the matter. Ms. Meenakshi Arora, Senior Counsel for the Intervenor in A. No. 140276 in W.P. C No. 1031 of 2019 Learned senior companynsel submitted that Articles 19 and 21 of the Constitution require that any action of the State must demonstrate five essential features a backing of a law, b legitimacy of purpose, c rational companynection of the act and object, d necessity of the action, and e when the above four are established, then the test of proportionality. At the outset, learned senior companynsel submitted that it is necessary to test the validity of the orders by reference to the facts and circumstances prevailing on the date of passing of the said orders, i.e., 04.08.2019. Learned senior companynsel submitted that the orders that have number been published cannot be accorded the force of law. The necessity of publication of law is a part of the rule of natural justice. Not only must the orders be published, it is also necessary that these orders be made available and accessible to the public. The State cannot refuse to produce the orders before the Court or claim any privilege. The learned senior companynsel further submitted that, numberwithstanding the expediency of the situation, the necessity of a measure must be shown by the State. The people have a right to speak their view, whether good, bad or ugly, and the State must prove that it was necessary to restrict the same. On the point of proportionality, the learned senior companynsel submitted that the test of proportionality was upheld by this Court in the case of K. S. Puttaswamy v. Union of India, 2017 10 SCC 1 hereinafter K. S. Puttaswamy Privacy 9J. and therefore the proportionality of a measure must be determined while looking at the restrictions being imposed by the State on the fundamental rights of citizens. The learned senior companynsel pointed out that it is number just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures. Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P. Crl. No. 225 of 2019 Although this Writ Petition was withdrawn during arguments, the learned senior companynsel wished to make certain submissions regarding the issue at hand. The learned senior companynsel submitted on behalf of the Petitioner that although he and his family were law abiding citizens, yet they are suffering the effects of the restrictions. Citing the House of Lords judgment of Liversidge v. Anderson, 1941 3 All ER 338 the learned senior companynsel submitted that it was the dissent by Lord Atkin, upholding the fundamental rights of the citizens of the United Kingdom, which is number the law of the land. Mr. K. K. Venugopal, Learned Attorney General for the Union of India The learned Attorney General supported the submissions made by the Solicitor General. He submitted that the background of terrorism in the State of Jammu and Kashmir needs to be taken into account. Relying on National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 5 SCC 1, the learned Attorney General submitted that this Court while deciding the aforementioned case, has taken companynizance of the problem of terrorism in the State before. According to the learned Attorney General, keeping in mind the facts regarding cross border terrorism and internal militancy, it would have been foolish to have number taken any preventive measures in the circumstances. The necessity of the orders under Section 144, Cr.P.C. are apparent from the background facts and circumstances, when there can be huge violence if the Government did number take these kinds of measures. In fact, similar steps were taken earlier by the Government in 2016 when a terrorist was killed in the State. Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir The learned Solicitor General submitted that the first and foremost duty of the State is to ensure security and protect the citizens their lives, limbs and property. He further submitted that the facts relied on by the Petitioners and the Intervenors were incorrect, as they did number have the companyrect information about the factual position on the ground in the State of Jammu and Kashmir. The learned Solicitor General submitted that the historical background of the State of Jammu and Kashmir is necessary to be looked at to understand the measures taken by the State. The State has been a victim of both physical and digital cross border terrorism. The abrogation of Article 370 of the Constitution on 05.08.2019 was a historic step, which resulted number in the taking away of the rights of the citizens of Jammu and Kashmir, but companyferment of rights upon them which they never had. Now, with the abrogation, 106 people friendly laws have become applicable to the State of Jammu and Kashmir. The learned Solicitor General submitted that the Petitioners were incorrect to state that public movement was restricted. In fact, individual movement had never been restricted. Additionally, while schools were closed initially, they have number been reopened. Depending on the facts, circumstances and requirements of an area, restrictions were put in place which are number being relaxed gradually. On the orders passed by the Magistrates under Section 144, Cr.P.C., in their respective jurisdictional areas, the learned Solicitor General submitted that they were best placed to know the situation on the ground, and then took their respective decisions accordingly. Currently, there is nearly hundred percent relaxation of restrictions. Restrictions were being relaxed on the basis of the threat perception. Restrictions were never imposed in the Ladakh region. This fact shows that there was application of mind while passing the orders by the officers on the ground, and that there was numbergeneral clampdown, as is being suggested by the Petitioners. Further, the learned Solicitor General pointed to various figures to indicate that people were leading their ordinary lives in the State. He submitted that all newspapers, television and radio channels are functioning, including from Srinagar, where the Petitioner in W.P. C No. 1031 of 2019 is situated. The learned Solicitor General further indicated that the Government had taken certain measures to ensure that essential facilities would be available to the populace. The learned Solicitor General submitted that orders passed under Section 144, Cr.P.C. can be preventive in nature, in order to prevent danger to public safety. The Magistrate can pass the order even on the basis of personal knowledge, and the same is supposed to be a speedy mechanism. The orders passed must be companysidered keeping in mind the history and the background of the State. Relying on Babulal Parate v. State of Bombay, AIR 1960 SC 51, and Madhu Limaye v. SubDivisional Magistrate, Monghgyr, 1970 3 SCC 746, the learned Solicitor General submitted that the situation in the State of Jammu and Kashmir was such that the orders companyld be justified in view of maintenance of the security of the State. Regarding the Petitioners submission that the restrictions companyld have been imposed on specific individuals, the learned Solicitor General submitted that it was impossible to segregate, and companytrol, the troublemakers from the ordinary citizens. The learned Solicitor General submitted that there were enough facts in the knowledge of the Magistrate to pass the orders under Section 144, Cr.P.C. There was sufficient speculation on the ground to suggest that there might be a move to abrogate Article 370 of the Constitution, and they were aware of the situation on the ground. Provocative speeches and messages were being transmitted. This information is all available in the public domain. It was further submitted that the Court does number sit in appeal of the decision to impose restrictions under Section 144, Cr.P.C. and has limited jurisdiction to interfere, particularly when there are numberallegations of mala fide made against the officers and when the question involved is of national security. The level of restriction required is best left to the officers who are on the ground with the requisite information and knowledge, and the same is number to be replaced by the opinion of the Courts. With respect to the companymunications and internet shutdown, the learned Solicitor General submitted that internet was never restricted in the Jammu and Ladakh regions. Further, he submitted that social media, which allowed people to send messages and companymunicate with a number of people at the same time, companyld be used as a means to incite violence. The purpose of the limited and restricted use of internet is to ensure that the situation on the ground would number be aggravated by targeted messages from outside the companyntry. Further, the internet allows for the transmission of false news or fake images, which are then used to spread violence. The dark web allows individuals to purchase weapons and illegal substances easily. The learned Solicitor General submitted that the jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different. While newspapers only allowed oneway companymunication, the internet makes twoway companymunication by which spreading of messages are very easy. The different companytext should be kept in mind by the Court while dealing with the restrictions with respect to the two media. While referring to various photographs, tweets and messages of political leaders of Kashmir, he stated that these statements are highly misleading, abrasive and detrimental to the integrity and sovereignty of India. Further, it is number possible to ban only certain websites parts of the Internet while allowing access to other parts. Such a measure was earlier attempted in 2017, but it was number successful. Lastly, the learned Solicitor General submitted that the orders passed under the Suspension Rules were passed in companypliance with the procedure in the Suspension Rules, and are being reviewed strictly in terms of the same. Some of the intervenors have supported the submissions made by the learned Attorney General and the Solicitor General, and indicated that the restrictions were necessary and in companypliance with the law. They have also submitted that numbermalcy is returning in the State of Jammu and Kashmir, and that the present petitions are number maintainable. ISSUES In line with aforesaid facts and arguments, the following questions of law arise for our companysideration Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules? II. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution? III. Whether the Governments action of prohibiting internet access is valid? IV. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid? Whether the freedom of press of the Petitioner in W.P. C No. 1031 of 2019 was violated due to the restrictions? PRODUCTION OF ORDERS The present petitions, their companytext and companyduct of the parties, have placed this Court in a peculiar situation. We have been asked to go into the question of the validity of orders, restricting movement and companymunication, passed in the State of Jammu and Kashmir by various authorities, however, the orders are number before us. The Petitioners and Intervenors claim that the orders were number available, which is why they companyld number place them on record. At the same time, while the numberavailability of orders was number denied by the RespondentState, they did number produce the said orders. In fact, when this Court by order dated 16.10.2019 asked them to produce the orders, the RespondentState placed on record only sample orders, citing difficulty in producing the numerous orders which were being withdrawn and modified on a daytoday basis. The RespondentState also claimed that the plea to produce orders by the Petitioners was an expansion of the scope of the present petitions. At the outset, a perusal of the prayers in the Writ Petitions before us should be sufficient to reject the aforementioned companytention of the RespondentState. In W.P. C No. 1164 of 2019 and I.A number 157139 in I.A. number 139555 of 2019 in W.P. C No. 1031 of 2019, a prayer has been made to issue a writ of mandamus or any other writ directing Respondent Nos. 1 and 2 to produce all orders by which movement of all persons has been restricted since 04.08.2019. Further, production of all orders by way of which companymunication has been blocked in State of Jammu and Kashmir has also been sought. On the obligation of the State to disclose information, particularly in a writ proceeding, this Court in Ram Jethmalani v. Union of India, 2011 8 SCC 1, observed as follows In order that the right guaranteed by clause 1 of Article 32 be meaningful, and particularly because such petitions seek the protection of fundamental rights, it is imperative that in such proceedings the petitioners are number denied the information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State. emphasis supplied We may numbere that there are two separate types of reasoning that mandates us to order production of the orders passed by the authorities in this case. First, Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression. A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself companynote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and number to take away these rights in an implied fashion or in casual and cavalier manner. Second, there is numberdispute that democracy entails free flow of information. There is number only a numbermative expectation under the Constitution, but also a requirement under natural law, that numberlaw should be passed in a clandestine manner. As Lon L. Fuller suggests in his celebrated article there can be numbergreater legal monstrosity than a secret statute.1 In this regard, Jeremy Bentham spoke about open justice as the keenest spur to exertion. In the same companytext, James Madison stated a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern the ignorance and a people 1Lon L. Fuller, Positivism and Fidelity to Law A Reply to Professor Hart, The Harvard Law Review, 71 4 , 630, 651 February, 1958. who mean to be their own Governors must arm themselves with the power which knowledge gives. As a general principle, on a challenge being made regarding the curtailment of fundamental rights as a result of any order passed or action taken by the State which is number easily available, the State should take a proactive approach in ensuring that all the relevant orders are placed before the Court, unless there is some specific ground of privilege or companyntervailing public interest to be balanced, which must be specifically claimed by the State on affidavit. In such cases, the Court companyld determine whether, in the facts and circumstances, the privilege or public interest claim of the State overrides the interests of the Petitioner. Such portion of the order can be redacted or such material can be claimed as privileged, if the State justifies such redaction on the grounds, as allowed under the law. In the present case, while the State initially claimed privilege, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this Court. In our opinion, this is number a valid ground to refuse production of orders before the Court. FUNDAMENTAL RIGHTS UNDER PART III AND RESTRICTIONS THEREOF The petitioners have companytended that the impugned restrictions have affected the freedom of movement, freedom of speech and expression and right to free trade and avocation. In this companytext, we have to first examine the nature of the fundamental rights provided under the Constitution. The nature of fundamental rights under Part III of the Constitution is well settled. The fundamental rights are prescribed as a negative list, so that numberperson companyld be denied such right until the Constitution itself prescribes such limitations. The only exception to the aforesaid formulation is Article 21A of the Constitution, which is a positive right that requires an active effort by the companycerned government to ensure that the right to education is provided to all children up to the age of 16 years. The positive prescription of freedom of expression will result in different companysequences which our own Constitution has number entered into. Having different social and economic backgrounds and existing on a different scale of development, the human rights enshrined therein have taken a different role and purpose. The framers of the Indian Constitution were aware of the situation of India, including the socioeconomic companyts of such proactive duty, and thereafter took an informed decision to restrict the application of fundamental rights in a negative manner. This crucial formulation is required to be respected by this Court, which has to uphold the companystitutional morality behind utilization of such negative prescriptions. Now, we need to companycern ourselves about the freedom of expression over the medium of internet. There is numbergainsaying that in todays world the internet stands as the most utilized and accessible medium for exchange of information. The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the usage of internet. At this point it is important to numbere the argument of Mr. Vinton Cerf, one of the fathers of the internet. He argued that while the internet is very important, however, it cannot be elevated to the status of a human right.2 Technology, in his view, is an enabler of rights and number a right in and of itself. He distinguishes 2 Vinton G. Cerf, Internet Access is number a Human Right, The New York Times January 04, 2012 . between placing technology among the exalted category of other human rights, such as the freedom of companyscience, equality etc. With great respect to his opinion, the prevalence and extent of internet proliferation cannot be undermined in ones life. Law and technology seldom mix like oil and water. There is a companysistent criticism that the development of technology is number met by equivalent movement in the law. In this companytext, we need to numbere that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet. We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is numberdispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the companytent of the right number can it justify its denial. refer to Secretary, Ministry of Information Broadcasting Government of India v. Cricket Association of Bengal, 1995 2 SCC 161 Shreya Singhal v. Union of India, 2015 5 SCC 1. The development of the jurisprudence in protecting the medium for expression can be traced to the case of Indian Express v. Union of India, 1985 1 SCC 641, wherein this Court had declared that the freedom of print medium is companyered under the freedom of speech and expression. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, 1988 3 SCC 410, it was held that the right of citizens to exhibit films on Doordarshan, subject to the terms and companyditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed under Article 19 1 a , which can be curtailed only under circumstances set out under Article 19 2 . Further, this Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of Information Broadcasting, Government of India supra . In this companytext, we may numbere that this Court, in a catena of judgments, has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. Expression through the internet has gained companytemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19 1 a and accordingly, any restriction on the same must be in accordance with Article 19 2 of the Constitution. In this companytext, we need to numbere that the internet is also a very important tool for trade and companymerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is numberdoubt that there are certain trades which are companypletely dependent on the internet. Such a right of trade through internet also fosters companysumerism and availability of choice. Therefore, the freedom of trade and companymerce through the medium of the internet is also companystitutionally protected under Article 19 1 g , subject to the restrictions provided under Article 19 6 . None of the companynsels have argued for declaring the right to access the internet as a fundamental right and therefore we are number expressing any view on the same. We are companyfining ourselves to declaring that the right to freedom of speech and expression under Article 19 1 a , and the right to carry on any trade or business under 19 1 g , using the medium of internet is companystitutionally protected. Having explained the nature of fundamental rights and the utility of internet under Article 19 of the Constitution, we need to companycern ourselves with respect to limitations provided under the Constitution on these rights. With respect to the freedom of speech and expression, restrictions are provided under Article 19 2 of the Constitution, which reads as under Nothing in sub clause a of clause 1 shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right companyferred by the said subclause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to companytempt of companyrt, defamation or incitement to an offence. The right provided under Article 19 1 has certain exceptions, which empowers the State to impose reasonable restrictions in appropriate cases. The ingredients of Article 19 2 of the Constitution are that The action must be sanctioned by law The proposed action must be a reasonable restriction Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to companytempt of companyrt, defamation or incitement to an offence. At the outset, the imposition of restriction is qualified by the term reasonable and is limited to situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or companytempt of Court, defamation or incitement to an offence. Reasonability of a restriction is used in a qualitative, quantitative and relative sense. It has been argued by the companynsel for the Petitioners that the restrictions under Article 19 of the Constitution cannot mean companyplete prohibition. In this companytext we may numbere that the aforesaid companytention cannot be sustained in light of a number of judgments of this Court wherein the restriction has also been held to include companyplete prohibition in appropriate cases. Madhya Bharat Cotton Association Ltd. v. Union of India, AIR 1954 SC 634, Narendra Kumar v. Union of India, 1960 2 SCR 375, State of Maharashtra v. Himmatbhai Narbheram Rao, 1969 2 SCR 392, Sushila Saw Mill v. State of Orissa, 1995 5 SCC 615, Pratap Pharma Pvt. Ltd. v. Union of India, 1997 5 SCC 87 and Dharam Dutt v. Union of India, 2004 1 SCC 712 The study of aforesaid case law points to three propositions which emerge with respect to Article 19 2 of the Constitution. i Restriction on free speech and expression may include cases of prohibition. ii There should number be excessive burden on free speech even if a companyplete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate. iii Whether a restriction amounts to a companyplete prohibition is a question of fact, which is required to be determined by the Court with regard to the facts and circumstances of each case. refer to State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, 2005 8 SCC 534. The second prong of the test, wherein this Court is required to find whether the imposed restriction prohibition was least intrusive, brings us to the question of balancing and proportionality. These companycepts are number a new formulation under the Constitution. In various parts of the Constitution, this Court has taken a balancing approach to harmonize two companypeting rights. In the case of Minerva Mills Ltd. v. Union of India, 1980 2 SCC 591 and Sanjeev Coke Manufacturing Company M s Bharat Coking Coal Ltd., 1983 1 SCC 147, this Court has already applied the balancing approach with respect to fundamental rights and the directive principles of State Policy. Before, we delve into the nuances of restriction as occurring under Article 19 2 of the Constitution, we need to observe certain facts and circumstances in this case. There is numberdoubt that Jammu and Kashmir has been a hot bed of terrorist insurgencies for many years. In this light, we may numbere the States submission that since 1990 to 2019 there have been 71,038 recorded incidents of terrorist violence, 14,038 civilians have died, 5292 security personnel were martyred, 22,536 terrorists were killed. The geopolitical struggle cannot be played down or ignored. In line with the aforesaid requirement, we may numbere that even the broadest guarantee of free speech would number protect the entire gamut of speech. The question which begs to be answered is whether there exists a clear and present danger in restricting such expression. Modern terrorism heavily relies on the internet. Operations on the internet do number require substantial expenditure and are number traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds. In this regard, Gregory S. McNeal,3 Professor of Law and Public Policy, Pepperdine University, states in his article about propaganda and the use of internet in the following manner Terrorist organisations have also begun to employ websites as a form of information warfare. Their websites can disperse inaccurate information that has farreaching 3 Gregory S. McNeal, Cyber Embargo Countering the Internet Jihad, 39 Case W. Res. J. Intl L. 789 2007 . companysequences. Because internet postings are number regulated sources of news, they can reflect any viewpoint, truthful or number. Thus, readers tend to companysider internet items to be fact, and stories can go unchecked for some time. Furthermore, streaming video and pictures of frightening scenes can support and magnify these news stories. As a result, the internet is a powerful and effective tool for spreading propaganda. Susan W. Brenner,4 NCR Distinguished Professor of Law and Technology, University of Dayton School of Law, also numberes that the traditional approach has number worked satisfactorily on terrorism due to the proliferation of the internet. It is the companytention of the respondents that the restriction on the freedom of speech was imposed due to the fact that there were national security issues over and above a law and order situation, wherein there were problems of infiltration and support from the other side of the border to instigate violence and terrorism. The learned Solicitor General pointed out that the war on terrorism requires imposition of such restriction so as to nip the problem of terrorism in the bud. He submitted that in earlier times, sovereignty and integrity of a State was challenged only on occurrence of war. In some cases, there have been instances 4 Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for Dealing with Terrorist Activity Online, 99 Am. Socy Intl. L. Proc. 108 2005 . where the integrity of the State has been challenged by secessionists. However, the traditional companyceptions of warfare have undergone an immense change and number it has been replaced by a new term called war on terror. This war, unlike the earlier ones, is number limited to territorial fights, rather, it transgresses into other forms affecting numbermal life. The fight against terror cannot be equated to a law and order situation as well. In this light, we observe that this companyfusion of characterising terrorism as a war stricto sensu or a numbermal law and order situation has plagued the submission of the respondent Government and we need to carefully companysider such submissions. Before analysing the restrictions imposed on the freedom of speech and expression in the Indian companytext, we need to have a broad analysis of the state of affairs in the United States of America hereinafter US where freedom of expression under the First Amendment is treated to be very significant with the US being perceived to be one of the liberal companystituencies with respect to free speech jurisprudence. However, we need to refer to the companytext and state of law in the US, before we can understand such an assertion. During the US civil war, a dramatic companyfrontation over free speech arose with respect to the speech of Clement L. Vallandigham, who gave a speech calling the civil war wicked, cruel and unnecessary. He urged the citizens to use ballot boxes to hurl President Lincoln from his throne. As a reaction, Union soldiers arrested Mr. Vallandigham and he had to face a five member military companymission which charged him with declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the government in its efforts to suppress an unlawful rebellion. Ex parte Vallandigham, 28 F. Cas. 874 1863 The companymission found Mr. Vallandigham guilty and imposed imprisonment during the war. The aforesaid imprisonment was met with demonstrations and publications calling such imprisonment as a crime against the US Constitution. President Lincoln, having regard to the US Constitution, companymuted the imprisonment and companyverted the same to banishment. He justified the aforesaid act by stating that banishment was more humane and a less disagreeable means of securing least restrictive measures. During World War I, many within the US had strong feelings against the war and the draft imposed by the administration of President Woodrow Wilson. During this period, the US enacted the Espionage Act, 1917 which penalised any person who wilfully caused or attempted to cause insubordination, disloyalty, mutiny by refusal from duty or naval services. In any case, in Abraham United States, 250 U.S. 616 1919 , Justice Holmes even in his dissent observed as under I do number doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States companystitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States companystitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do number exist at other times. emphasis supplied The Second World War was also riddled with instances of tussle between the First Amendment and national security issues. An instance of the same was the companyviction of William Dudley Pelley, under the Espionage Act, 1917, which the Supreme Court of United States refused to review. During the Cold War, the attention of the American Congress was on the increase of companymunism. In 1954, Congress even enacted the Communist Control Act, which stripped the Communist party of all rights, privileges and immunities. During this time, Dennis United States, 341 US 494 1951 , is an important precedent. Sections 2 a 1 , 2 a 3 and 3 of the Alien Registration Act, 1940 made it unlawful for any person to knowingly or wilfully advocate with the intent of the overthrowing or destroying the Government of the United States by force or violence, to organize or help to organize any group which does so, or to companyspire to do so. The Petitioner in the aforementioned case challenged the aforesaid provision on the ground that these provisions violated the First Amendment. The US Supreme Court held An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is number an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and companysiderations. During the Vietnam war, the US Supreme Court had to deal with the case of Brandenburg v. Ohio, 395 US 444 1969 , wherein the Court overruled Dennis supra and held that the State cannot punish advocacy of unlawful companyduct, unless it is intended to incite and is likely to incite imminent lawless action. There is numberdoubt that the events of September 2011 brought new challenges to the US in the name of war on terror. In this companytext, Attorney General John Ashcroft stated that To those who scare peaceloving people with phantoms of lost liberty, my message is this Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to Americas enemies.5 However, Bruce Ackerman, in his article, 6 states that The war on terrorism has paid enormous political dividends but that does number make it a companypelling legal companycept. War is traditionally defined as a state of belligerency between sovereigns The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties. 5 Senate Judiciary Committee Hearing on AntiTerrorism Policy, 106th Cong. Dec. 6, 2001 testimony of Attorney General John Ashcroft 6 Ackerman, Bruce, The Emergency Constitution, Faculty Scholarship Series, 113 2004 . From the aforesaid study of the precedents and facts, we may numbere that the law in the US has undergone lot of changes companycerning dissent during war. The position that emerges is that any speech which incites imminent violence does number enjoy companystitutional protection. It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19 1 a if the need be so, in companypliance with the requirements under Article 19 2 . It is in this companytext, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict. The requirement of balancing various companysiderations brings us to the principle of proportionality. In the case of K. S. Puttaswamy Privacy9J. supra , this Court observed 310Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is number disproportionate to the purpose of the law Further, in the case of CPIO v Subhash Chandra Aggarwal, 2019 SCC OnLine SC 1459, the meaning of proportionality was explained as 225It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the companyntervailing interest in question At the same time, we need to numbere that when it companyes to balancing national security with liberty, we need to be cautious. In the words of Lucia Zedner7 Typically, companyflicting interests are said to be balanced as if there were a selfevident weighting of or priority among them. Yet rarely are the particular interests spelt out, priorities made explicitly, or the process by which a weight is achieved made clear. Balancing is presented as a zerosum game in which more of one necessarily means less of the other Although beloved of companystitutional lawyers and political theorists, the experience of criminal justice is that balancing is a politically dangerous metaphor unless careful regard is given to what is at stake. The proportionality principle, can be easily summarized by Lord Diplocks aphorism you must number use a steam hammer to crack a nut, if a nutcracker would do? refer to R v. Goldsmith, 1983 1 7Lucia Zedner, Securing Liberty in the Face of Terror Reflections from Criminal Justice, 2005 32 Journal of Law and Society 510. WLR 151, 155 Diplock J . In other words, proportionality is all about means and ends. The suitability of proportionality analysis under Part III, needs to be observed herein. The nature of fundamental rights has been extensively companymented upon. One view is that the fundamental rights apply as rules, wherein they apply in an allornothing fashion. This view is furthered by Ronald Dworkin, who argued in his theory that companycept of a right implies its ability to trump over a public good.8 Dworkins view necessarily means that the rights themselves are the end, which cannot be derogated as they represent the highest numberm under the Constitution. This would imply that if the legislature or executive act in a particular manner, in derogation of the right, with an object of achieving public good, they shall be prohibited from doing so if the aforesaid action requires restriction of a right. However, while such an approach is often taken by American Courts, the same may number be companypletely suitable in the Indian companytext, having regard to the structure of Part III which companyes with inbuilt restrictions. 8Ronald Dworkin, Rights as Trumps in Jeremy Waldron ed. , Theories of Rights 1984 153 hereinafter Dworkin, Rights as is trumps . However, there is an alternative view, held by Robert Alexy, wherein the fundamental rights are viewed as principles, 9 wherein the rights are portrayed in a numbermative manner. Rules are numberms that are always either fulfilled or number whereas principles are numberms which require that something be realized to the greatest extent possible given the legal and factual possibilities.10 This characterisation of principles has implications for how to deal with companyflicts between them it means that where they companyflict, one principle has to be weighed against the other and a determination has to be made as to which has greater weight in this companytext.11 Therefore, he argues that nature of principles implies the principle of proportionality. 12 The doctrine of proportionality is number foreign to the Indian Constitution, companysidering the use of the word reasonable under Article 19 of the Constitution. In a catena of judgments, this Court has held reasonable restrictions are indispensable for the realisation of freedoms enshrined under Article 19, as they are what ensure that enjoyment of rights is number arbitrary or excessive, so as to affect public interest. This Court, while sitting 9R. Alexy, A Theory of Constitutional Rights Oxford, Oxford University Press, 2002 . 10Ibid at page 47. 11Ibid, page 50. 12Ibid, page 66. in a Constitution Bench in one of its earliest judgments in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 interpreted limitations on personal liberty, and the balancing thereof, as follows The phrase reasonable restriction companynotes that the limitation imposed on a person in enjoyment of the right should number be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a companyrse which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to companytain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 1 g and the social companytrol permitted by clause 6 of Article 19, it must be held to be wanting in that quality. emphasis supplied This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196, while laying down the test of reasonableness, held that It is important in this companytext to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and numberabstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing companyditions at the time, should all enter into the judicial verdict. emphasis supplied A Constitution Bench of this Court in Mohammed Faruk v. State of Madhya Pradesh, 1969 1 SCC 853 while determining rights under Article 19 1 g of the Constitution, discussed the doctrine of proportionality in the aforesaid terms The Court must in companysidering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizens freedom the possibility of achieving the object by imposing a less drastic restraint or that a less drastic restriction may ensure the object intended to be achieved. emphasis supplied In the case of Om Kumar v. Union of India, 2001 2 SCC 386 the principle of proportionality, in light of administrative orders, was explained as follows By proportionality, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or leastrestrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe. Under the principle, the companyrt will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or number is for the companyrt. That is what is meant by proportionality. emphasis supplied See also State of Bihar v. Kamla Kant Misra, 1969 3 SCC 337 Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, 1982 1 SCC 39 Recently, this Court in Modern Dental College Research Centre v. State of Madhya Pradesh, 2016 7 SCC 353 has held that numberconstitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore be justified. The Court held as follows It is number almost accepted that there are numberabsolute companystitutional rights. Though, debate on this vexed issue still companytinues and some companystitutional experts claim that there are certain rights, albeit very few, which can still be treated as absolute. Examples given are a Right to human dignity which is inviolable, b Right number to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause 1 of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This numberion accepts the modern companystitutional theory that the companystitutional rights are related. This relativity means that a companystitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenonof both the right and its limitation in the Constitution exemplifies the inherent tension between democracys two fundamental elements emphasis supplied In the aforesaid case, this Court was posed with a dilemma as to how to treat companypeting rights. The Court attempted to resolve the companyflict by holding that rights and limitations must be interpreted harmoniously so as to facilitate companyxistence. This Court observed therein 62 On the one hand is the rights element, which companystitutes a fundamental companyponent of substantive democracy on the other hand is the people element, limiting those very rights through their representatives. These two companystitute a fundamental companyponent of the numberion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is number resolved by eliminating the losing facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the companypeting principles. This is one of the expressions of the multifaceted nature of democracy. Indeed, the inherent tension between democracys different facets is a companystructive tension. It enables each facet to develop while harmoniously companyxisting with the others. The best way to achieve this peaceful companyxistence is through balancing between the companypeting interests. Such balancing enables each facet to develop alongside the other facets, number in their place. This tension between the two fundamental aspectsrights on the one hand and its limitation on the other handis to be resolved by balancing the two so that they harmoniously companyxist with each other. This balancing is to be done keeping in mind the relative social values of each companypetitive aspects when companysidered in proper companytext. emphasis supplied The next companyundrum faced by the Court was in achieving the requisite balance, the solution for which was derived from the principle of proportionality. The eminent companystitutional jurist, Kai Mller states that the proportionality principle is the doctrinal tool which guides Judges through the process of resolving these companyflicts.13 One of the theories of proportionality widely relied upon by most theorists is the version developed by the German Federal Constitutional Court. The aforesaid doctrine lays down a four pronged test wherein, first, it has to be analysed as to whether the measure restricting the rights serves a legitimate goal also called as legitimate goal test , then it has to be analysed whether the measure is a suitable means of furthering this goal the rational companynection stage , next it has to be assessed whether there existed an equally effective but lesser restrictive alternative remedy the necessity test and at last, it should be analysed if such a measure had a disproportionate impact on the rightholder balancing stage . One important 13Kai Mller, The Global Model of Constitutional Rights Oxford, Oxford University Press, 2012 . feature of German test is the last stage of balancing, which determines the outcome as most of the important issues are pushed to the balancing stage and the same thereby dominates the legal analysis. Under this approach, any goal which is legitimate will be accepted as usually a lesser restrictive measure might have the disadvantage of being less effective and even marginal companytribution to the goal will suffice the rational companynection test.14 The aforesaid test needs to be companytrasted with its Canadian companynterpart also known as the Oakes test. According to the said doctrine, the object of the measure must be companypelling enough to warrant overriding of the companystitutionally guaranteed freedom a rational nexus must exist between such a measure and the object sought to be achieved the means must be least restrictive and lastly, there must be proportionality between the effects of such measure and the object sought to be achieved. This doctrine of proportionality is elaborately propounded by Dickson, C.J., of the Supreme Court of Canada in R. v. Oakes, 1986 1 SCR 103 Can SC, in the following words at p. 138 14Kai Mller, Constructing the Proportionality Test An Emerging Global Conversation, Reasoning Rights Comparative Judicial Engagement Hart Publishing, 2014 . To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a companystitutionally protected right or freedom Second the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves a form of proportionality test Although the nature of the proportionality test will vary depending on the circumstances, in each case companyrts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important companyponents of a proportionality test. First, the measures adopted must be rationally companynected to the objective. Second, the means should impair as little as possible the right or freedom in question Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. emphasis supplied As can be seen, there exists substantial difference in both approaches, as the Oakes test, instead of requiring any legitimate goal, demands the same to be companypelling enough to warrant the limitation of companystitutional rights. Additionally, while the German necessity test calls for a lesser restrictive measure which is equivalently effective, the need for effectiveness has been done away with in the Oakes test wherein the requirement of least infringing measure has been stipulated. It is also imperative for us to place reliance on Aharon Baraks seminal book15 on proportionality upon which Dr A.K. Sikri, J. placed reliance while expounding the doctrine of proportionality in Modern Dental College case supra as follows 60. a limitation of a companystitutional right will be companystitutionally permissible if it is designated for a proper purpose the measures undertaken to effectuate such a limitation are rationally companynected to the fulfilment of that purpose the measures undertaken are necessary in that there are numberalternative measures that may similarly achieve that same purpose with a lesser degree of limitation and finally there needs to be a proper relation proportionality stricto sensu or balancing between the importance of achieving the proper purpose and the social importance of preventing the limitation on the companystitutional right. emphasis supplied 15Aharon Barak, Proportionality Constitutional Rights and Their Limitation Cambridge University Press, 2012 In Modern Dental College case supra , this Court also went on to analyse that the principle of proportionality is inherently embedded in Indian Constitution under the realm of the doctrine of reasonable restrictions and that the same can be traced under Article 19. The relevant extracts are placed below We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause 1 along with clause 6 thereof. While defining as to what companystitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression reasonable restriction seeks to strike a balance between the freedom guaranteed by any of the subclauses of clause 1 of Article 19 and the social companytrol permitted by any of the clauses 2 to 6 . It is held that the expression reasonable companynotes that the limitation imposed on a person in the enjoyment of the right should number be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must number go in excess of that object see P.P. Enterprises v. Union of India, 1982 2 SCC 33 . At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and number from the point of view of the persons upon whom the restrictions are imposed or upon abstract companysiderations see Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 . emphasis supplied Thereafter, a companyprehensive doctrine of proportionality in line with the German approach was propounded by this Court in the Modern Dental College case supra wherein the Court held that In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here companyes the companycept of proportionality, which is a proper criterion. To put it pithily, when a law limits a companystitutional right, such a limitation is companystitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally companynected to the purpose, and such measures are necessary The exercise which, therefore, is to be taken is to find out as to whether the limitation of companystitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of companypetitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests. emphasis supplied While some scholars such as Robert Alexy 16 call for a strong interpretation of the necessity stage as it has direct impact upon the realisation and optimisation of companystitutional rights while others such as David Bilchitz 17 found significant problems with this approach. First, Bilchitz focuses on the issues arising out of both the German test and the Oakes test, wherein the former treats all policies to be necessary by justifying that the available alternatives may number be equally effective, while the latter applies the minimal impairment test narrowing the companystitutionally permissible policies and places a strong burden on the Government to justify its policies. Therefore, Bilchitz argues that if the necessity stage is interpreted strictly, legislations and policies numbermatter how well intended will fail to pass the proportionality inquiry if any other slightly less drastic measure exists. Bilchitz, therefore, indicates that Alexys companyclusion may be too quick. 16Robert Alexy, A Theory of Constitutional Rights Oxford, Oxford University Press, 2002 47. 17David Bilchitz, Necessity and Proportionality Towards A Balanced Approach? in L. Lazarus, C. McCrudden and N. Bowles eds. , Reasoning Rights, 41 2014 . Moreover, this also leads to the issue regarding the doctrine of separation of power, as Courts would often substitute the views of the legislature in deciding what is the least restrictive measure. Taking the aforesaid issues into companysideration, Bilchitz proposed a moderate interpretation of the necessity test wherein Courts may numberlonger be required to assess policies and measures against impractical and unreasonable standards. He states that necessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. That process thus requires companyrts to reason through the various stages of the moderate interpretation of necessity.18 He therefore recommends a fourstep inquiry which is listed below19 MN1 All feasible alternatives need to be identified, with companyrts being explicit as to criteria of feasibility MN2 The relationship between the government measure under companysideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined. An attempt must be made to retain only those alternatives to the measure that realise the objective in a real and substantial manner 18 Ibid, page 61. 19Ibid, page 61. MN3 The differing impact of the measure and the alternatives identified in MN2 upon fundamental rights must be determined, with it being recognised that this requires a recognition of approximate impact and MN4 Given the findings in MN2 and MN3, an overall companyparison and balancing exercise must be undertaken between the measure and the alternatives. A judgement must be made whether the government measure is the best of all feasible alternatives, companysidering both the degree to which it realises the government objective and the degree of impact upon fundamental rights the companyparative companyponent . Admittedly, fundamental rights may number be absolute, however, they require strong protection, thereby mandating a sensible necessity test as the same will prevent the fundamental right from becoming either absolute or to be diminished. Bilchitz, describes the aforesaid test to be neither factual number mechanical, but rather numbermative and qualitative. He states that the key purpose of the necessity enquiry is to offer an explicit companysideration of the relationship between means, objectives and rights Failure to companyduct the necessity enquiry with diligence, however, means that a government measure can escape close scrutiny in relation to both the realisation of the objective and its impact upon fundamental rights.20 Taking into companysideration the aforesaid analysis, Dr. Sikri, J., in S. Puttaswamy Retired v. Union of India, 2019 1 SCC 1 hereinafter K.S. Puttaswamy Aadhaar 5J. reassessed the test laid down in Modern Dental College Case supra which was based on the German Test and modulated the same as against the tests laid down by Bilchitz. Therein this Court held that In Modern Dental College Research Centre Modern Dental College Research Centre v. State of M.P., 2016 7 SCC 353, four subcomponents of proportionality which need to be satisfied were taken numbere of. These are A measure restricting a right must have a legitimate goal legitimate goal stage . It must be a suitable means of furthering this goal suitability or rational companynection stage . There must number be any less restrictive but equally effective alternative necessity stage . The measure must number have a disproportionate impact on the rightholder balancing stage . This has been approved in K.S. Puttaswamy K.S. Puttaswamy v. Union of India, 2017 10 SCC 1 as well. Therefore, the aforesaid stages of proportionality can be looked into and discussed. Of companyrse, while undertaking this exercise it has also to be 20Ibid, 62 seen that the legitimate goal must be of sufficient importance to warrant overriding a companystitutionally protected right or freedom and also that such a right impairs freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is tempered with more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College Research Centre Modern Dental College Research Centre v. State of M.P., 2016 7 SCC 353 and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted. emphasis supplied Dr. Chandrachud, J., in K.S. Puttaswamy Aadhaar5J. supra , made observations on the test of proportionality that needs to be satisfied under our Constitution for a violation of the right to privacy to be justified, in the following words 1288. In K.S. Puttaswamy v. Union of India K.S. Puttaswamy v. Union of India, 2017 10 SCC 1, one of us Chandrachud, J. , speaking for four Judges, laid down the tests that would need to be satisfied under our Constitution for violations of privacy to be justified. This included the test of proportionality SCC p. 509, para 325 A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the companytext of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of i legality, which postulates the existence of law need, defined in terms of a legitimate State aim and iii proportionality which ensures a rational nexus between the objects and the means adopted to achieve them. The third principle iii above adopts the test of proportionality to ensure a rational nexus between the objects and the means adopted to achieve them. The essential role of the test of proportionality is to enable the companyrt to determine whether a legislative measure is disproportionate in its interference with the fundamental right. In determining this, the companyrt will have regard to whether a less intrusive measure companyld have been adopted companysistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. The proportionality standard must be met by the procedural and substantive aspects of the law. Sanjay Kishan Kaul, J., in his companycurring opinion, suggested a fourpronged test as follows SCC p. 632, para 638 The action must be sanctioned by law The proposed action must be necessary in a democratic society for a legitimate aim The extent of such interference must be proportionate to the need for such interference There must be procedural guarantees against abuse of such interference. emphasis supplied After applying the aforesaid doctrine in deciding the companystitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., in the K.S. Puttaswamy Aadhaar5J. case supra , reiterated the fundamental precepts of doctrine of proportionality in relation to protection of privacy interests while dealing with personal data 1324. The fundamental precepts of proportionality, as they emerge from decided cases can be formulated thus 1324.1. A law interfering with fundamental rights must be in pursuance of a legitimate State aim 1324.2. The justification for rightsinfringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational companynection between those measures, the situation in fact and the object sought to be achieved 1324.3. The measures must be necessary to achieve the object and must number infringe rights to an extent greater than is necessary to fulfil the aim 1324.4. Restrictions must number only serve legitimate purposes they must also be necessary to protect them and 1324.5. The State must provide sufficient safeguards relating to the storing and protection of centrally stored data. In order to prevent arbitrary or abusive interference with privacy, the State must guarantee that the companylection and use of personal information is based on the companysent of the individual that it is authorised by law and that sufficient safeguards exist to ensure that the data is only used for the purpose specified at the time of companylection. Ownership of the data must at all times vest in the individual whose data is companylected. The individual must have a right of access to the data companylected and the discretion to opt out. emphasis supplied This is the current state of the doctrine of proportionality as it exists in India, wherein proportionality is the key tool to achieve judicial balance. But many scholars are number agreeable to recognize proportionality equivalent to that of balancing.21 In view of the aforesaid discussion, we may summarize the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be numbered that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into companysideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the 21Julian Rivers, Proportionality and Variable Intensity of Review, 2006 65 C.L.J. 174 hereinafter Rivers, Proportionality Martin Luteran, Towards Proportionality as a Proportion Between Means and Ends in Cian C. Murphy and Penny Green eds. , Law and Outsiders Norms, Processes and Othering in the 21st Century 2011 hereinafter Luteran, Towards Proportionality see also the companytribution of Alison L. Young in Chapter 3 of this volume. affected parties, the same should be supported by sufficient material and should be amenable to judicial review. The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to companybat an emergent situation. To companysider the immediate impact of restrictions upon the realization of the fundamental rights, the decision maker must prioritize the various factors at stake. Such attribution of relative importance is what companystitutes proportionality. It ought to be numbered that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate. The companycept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the companysideration of appropriateness, necessity and the least restrictive measure before being imposed. In this companytext, we need to numbere that the Petitioners have relied on a recent judgment of the High Court of Hong Kong, in Kwok Wing Hang and Ors. v. Chief Executive in Council, 2019 HKCFI 2820 to state that the Hong Kong High Court has utilised the principle to declare the antimask law as unconstitutional. In any case, we need number companyment on the law laid down therein, as this Court has independently propounded the test of proportionality as applicable in the Indian companytext. However, we may just point out that the proportionality test needs to be applied in the companytext of facts and circumstances, which are very different in the case at hand. Having observed the law on proportionality and reasonable restrictions, we need to companye back to the application of restrictions on the freedom of speech over the internet. The respondentState has vehemently opposed selective access to internet services based on lack of technology to do the same. If such a companytention is accepted, then the Government would have a free pass to put a companyplete internet blockage every time. Such companyplete blocking prohibition perpetually cannot be accepted by this Court. However, there is ample merit in the companytention of the Government that the internet companyld be used to propagate terrorism thereby challenging the sovereignty and integrity of India. This Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multifaceted approach without excessively burdening the freedom of speech. In this regard the Government is required to companysider various options under Article 19 2 of the Constitution, so that the brunt of exigencies is decimated in a manner which burdens freedom of speech in a minimalist manner. Having discussed the general companystitutional ambit of the fundamental rights, proportionality and reasonable restrictions, and a specific discussion on freedom of expression through the internet and its restriction under Article 19 2 , we number need to analyse the application of the same in the present case. INTERNET SHUTDOWN Having observed the substantive law companycerning the right to internet and the restrictions that can be imposed on the same, we need to turn our attention to the procedural aspect. It must be numbered that although substantive justice under the fundamental rights analysis is important, procedural justice cannot be sacrificed on the altar of substantive justice. There is a need for procedural justice in cases relating to restrictions which impact individuals fundamental rights as was recognized by this Court in the case of Maneka Gandhi v. Union of India, 1978 1 SCC 248 and the K. S. Puttaswamy Privacy9J. case supra . The procedural mechanism companytemplated for restrictions on the Internet, is twofold first is companytractual, relating to the companytract signed between Internet Service Providers and the Government, and the second is statutory, under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act. In the present case, we are companycerned only with the statutory scheme available, particularly under the Telegraph Act, and we will therefore companyfine our discussion mostly to the same. However, as it would be apposite to distinguish between the different statutory mechanisms, we would touch upon these cursorily. Section 69A of the Information Technology Act, 2000 read with the Information Technology Procedures and Safeguards for Blocking for Access of Information by Public Rules, 2009 allows blocking of access to information. This Court, in the Shreya Singhal case supra , upheld the companystitutional validity of this Section and the Rules made thereunder. It is to be numbered however, that the field of operation of this section is limited in scope. The aim of the section is number to restrict block the internet as a whole, but only to block access to particular websites on the internet. Recourse cannot, therefore, be made by the Government to restrict the internet generally under this section. Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144, Cr.P.C., a general provision granting wide powers to the Magistrates specified therein to pass orders in cases of apprehended danger. In 2015, the High Court of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State of Gujarat, in Writ Petition PIL No. 191 of 2015, companysidered a challenge to an order under Section 144, Cr.P.C. blocking access to mobile internet services in the State of Gujarat. The High Court of Gujarat, vide order dated 15.09.2015, upheld the restriction imposed by the Magistrate under Section 144, Cr.P.C. While the Court did number undertake a fullfledged discussion of the power of the Magistrate to issue such restrictions under Section 144, Cr.P.C., the Court observed as follows Under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access. Under the circumstances, we do number find that the companytention raised on behalf of the petitioner that the resort to only Section 69A was available and exercise of power under Section 144 of the Code was unavailable, can be accepted. emphasis supplied A Special Leave Petition was filed against the above judgment of the Gujarat High Court, being SLP C No. 601 of 2016, which was dismissed by this Court in limine on 11.02.2016. The position has changed since 2017, with the passage of the Suspension Rules under Section 7 of the Telegraph Act. With the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet. The Suspension Rules lay down certain safeguards, keeping in mind the fact that an action under the same has a large effect on the fundamental rights of citizens. It may be mentioned here that we are number companycerned with the companystitutionality of the Suspension Rules, and arguments on the same were number canvassed by either side. As such, we are limiting our discussion to the procedure laid down therein. Rule 2 lays down the procedure to be followed for the suspension of telecom services, and merits reproduction in its entirety 2. 1 Directions to suspend the telecom services shall number be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government incharge of the Home Department in the case of a State Government hereinafter referred to as the companypetent authority , and in unavoidable circumstances, where obtaining of prior direction is number feasible, such order may be issued by an officer, number below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the companyfirmation from the companypetent authority within 24 hours of issuing such order Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of companyfirmation from the companypetent authority within the said period of 24 hours. Any order issued by the companypetent authority under subrule 1 shall companytain reasons for such direction and a companyy of such order shall be forwarded to the companycerned Review Committee latest by next working day. The directions for suspension issued under subrule 1 shall be companyveyed to designated officers of the telegraph authority or to the designated officers of the service providers, who have been granted licenses under section 4 of the said Act, in writing or by secure electronic companymunication by an officer number below the rank of Superintendent of Police or of the equivalent rank and mode of secure electronic companymunication and its implementation shall be determined by the telegraph authority. The telegraph authority and service providers shall designate officers in every licensed service area or State or Union territory, as the case may be, as the numberal officers to receive and handle such requisitions for suspension of telecom services. The Central Government or the State Government, as the case may be, shall companystitute a Review Committee. The Review Committee to be companystituted by the Central Government shall companysist of the following, namely Cabinet SecretaryChairman Secretary to the Government of India Incharge, Legal AffairsMember Secretary to the Government, Department of Telecommunications Member. The Review Committee to be companystituted by the State Government shall companysist of the following, namely Chief SecretaryChairman Secretary Law or Legal Remembrancer InCharge, Legal AffairsMember Secretary to the State Government other than the Home Secretary Member. The Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under subrule 1 are in accordance with the provisions of subsection 2 of section 5 of the said Act. Rule 2 1 specifies the companypetent authority to issue an order under the Suspension Rules, who in ordinary circumstances would be the Secretary to the Ministry of Home Affairs, Government of India, or in the case of the State Government, the Secretary to the Home Department of the State Government. The subrule also provides that in certain unavoidable circumstances an officer, who is duly authorised, number below the rank of a Joint Secretary, may pass an order suspending services. The two provisos to Rule 2 1 are extremely relevant herein, creating an internal check as to orders which are passed by an authorised officer in unavoidable circumstances, as opposed to the ordinary mechanism envisaged, which is the issuing of the order by the companypetent authority. The provisos together provide that the orders passed by duly authorised officers in unavoidable circumstances need to be companyfirmed by the companypetent authority within twentyfour hours, failing which, as per the second proviso, the order of suspension will cease to exist. The companyfirmation of the order by the companypetent authority is therefore essential, failing which the order passed by a duly authorised officer will automatically lapse by operation of law. Rule 2 2 is also extremely important, as it lays down twin requirements for orders passed under Rule 2 1 . First, it requires that every order passed by a companypetent authority under Rule 2 1 must be a reasoned order. This requirement must be read to extend number only to orders passed by a companypetent authority, but also to those orders passed by an authorised officer which is to be sent for subsequent companyfirmation to the companypetent authority. The reasoning of the authorised officer should number only indicate the necessity of the measure but also what the unavoidable circumstance was which necessitated his passing the order. The purpose of the aforesaid rule is to integrate the proportionality analysis within the framework of the Rules. Only in such an event would the requirement of companyfirmation by the companypetent authority have any meaning, as it would allow the companypetent authority to properly companysider the action taken by the authorised officer. Further, the companyfirmation must number be a mere formality, but must indicate independent application of mind by the companypetent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc. After all, it is the companypetent authority who has been given the power under the Suspension Rules to suspend telecom services, with the authorised officer acting under the Suspension Rules only due to some exigent circumstances. The second requirement under Rule 2 2 is the forwarding of the reasoned order of the companypetent authority to a Review Committee which has been set up under the Suspension Rules, within one working day. The companyposition of the Review Committee is provided under Rule 2 5 , with two distinct review companymittees companytemplated for the Union and the State, depending on the companypetent authority which issued the order under Rule 2 1 . Rule 2 6 is the final internal check under the Suspension Rules with respect to the orders issued thereunder. Rule 2 6 requires the companycerned Review Committee to meet within five working days of issuance of the order suspending telecom services, and record its findings about whether the order issued under the Suspension Rules is in accordance with the provisions of the main statute, viz., Section 5 2 of the Telegraph Act. This last requirement, of the orders issued under the Rules being in accordance with Section 5 2 , Telegraph Act, is very relevant to understand the circumstances in which the suspension orders may be passed. Section 5 2 , Telegraph Act is as follows Power for Government to take possession of licensed telegraphs and to order interception of messages xxx On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the companymission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall number be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order Provided that the press messages intended to be published in India of companyrespondents accredited to the Central Government or a State Government shall number be intercepted or detained, unless their transmission has been prohibited under this subsection. This Court has had prior occasion to interpret Section 5 of the Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of India, 1976 2 SCC 128, a FourJudge Bench of this Court interpreted Section 5 of the Telegraph Act and observed as follows Section 5 1 if properly companystrued, does number companyfer unguided and unbridled power on the Central Government State Government/ specially authorised officer to take possession of any telegraphs. Firstly, the occurrence of a public emergency is the sine qua number for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority companycerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a prerequisite for the exercise of power under this section, must be a public emergency and number any other kind of emergency. The expression public emergency has number been defined in the statute, but companytours broadly delineating its scope and features are discernible from the section which has to be read as a whole. In subsection 1 the phrase occurrence of any public emergency is companynected with and is immediately followed by the phrase or in the interests of the public safety. These two phrases appear to take companyour from each other. In the first part of subsection 2 those two phrases again occur in association with each other, and the companytext further clarifies with amplification that a public emergency within the companytemplation of this section is one which raises problems companycerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the companymission of an offence. It is in the companytext of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a public emergency with a view to taking further action under this section emphasis supplied The aforementioned case was followed in Peoples Union for Civil Liberties PUCL v. Union of India, 1997 1 SCC 301, in the companytext of phonetapping orders passed under Section 5 2 of the Telegraph Act, wherein this Court observed as follows The first step under Section 5 2 of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the companypetent authority under Section 5 2 of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of i sovereignty and integrity of India, ii the security of the State, friendly relations with foreign States, iv public order or v for preventing incitement to the companymission of an offence. When any of the five situations mentioned above to the satisfaction of the companypetent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. Keeping in mind the wordings of the section, and the above two pronouncements of this Court, what emerges is that the pre requisite for an order to be passed under this subsection, and therefore the Suspension Rules, is the occurrence of a public emergency or for it to be in the interest of public safety. Although the phrase public emergency has number been defined under the Telegraph Act, it has been clarified that the meaning of the phrase can be inferred from its usage in companyjunction with the phrase in the interest of public safety following it. The Hukam Chand Shyam Lal case supra further clarifies that the scope of public emergency relates to the situations companytemplated under the subsection pertaining to sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the companymission of an offence. The word emergency has various companynotations. Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property. Article 4 of the International Covenant on Civil and Political Rights, numberes that In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed Comparable language has also been used in Article 15 of the European Convention on Human Rights which says In time of war or other public emergency threatening the life of the nation. We may only point out that the public emergency is required to be of serious nature, and needs to be determined on a case to case basis. The second requirement of Section 5 2 of the Telegraph Act is for the authority to be satisfied that it is necessary or expedient to pass the orders in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the companymission of an offence, and must record reasons thereupon. The term necessity and expediency brings along the stages an emergency is going to pass through usually. A public emergency usually would involve different stages and the authorities are required to have regards to the stage, before the power can be utilized under the aforesaid rules. The appropriate balancing of the factors differs, when companysidering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement. A point canvassed by the learned companynsel for the Petitioner, Ms. Vrinda Grover, with regard to the interpretation of the proviso to Section 5 2 of the Telegraph Act. The proviso to the section specifies that a class of messages, i.e., press messages intended to be published in India of companyrespondents accredited to the Central Government or a State Government, will be treated differently from other classes of messages. The learned companynsel companytended that this separate classification necessitates that an order interfering with the press would be in companypliance with Section 5 2 of the Telegraph Act only if it specifically states that the press is also to be restricted. However, the aforesaid interpretation companyld number be supported by the petitioner with any judgments of this Court. It must be numbered that although the Suspension Rules does number provide for publication or numberification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. Any law which demands companypliance of the people requires to be numberified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or number. We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism. See B.K. Srinivasan v. State of Karnataka, 1987 1 SCC 658 The above requirement would further the rights of an affected party to challenge the orders, if aggrieved. Judicial review of the orders issued under the Suspension Rules is always available, although numberappellate mechanism has been provided, and the same cannot be taken away or made ineffective. An aggrieved person has the companystitutional right to challenge the orders made under the Suspension Rules, before the High Court under Article 226 of the Constitution or other appropriate forum. We also direct that all the above procedural safeguards, as elucidated by us, need to be mandatorily followed. In this companytext, this Court in the Hukam Chand Shyam Lal case supra , observed as follows It is wellsettled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or number at all, and all other amodes sic of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature emphasis supplied This applies with even more force companysidering the large public impact on the right to freedom of speech and expression that such a broadbased restriction would have. Lastly, we think it necessary to reiterate that companyplete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be companysidered by the State only if necessary and unavoidable. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy. Having said so, we may numbere that the aforesaid Suspension Rules have certain gaps, which are required to be companysidered by the legislature. One of the gaps which must be highlighted relates to the usage of the word temporary in the title of the Suspension Rules. Despite the above, there is numberindication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible. In this companytext, it is necessary to lay down some procedural safeguard till the aforesaid deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is number disproportionate. We therefore direct that the Review Committee companystituted under Rule 2 5 of the Suspension Rules must companyduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2 6 . The Review Committee must therefore number only look into the question of whether the restrictions are still in companypliance with the requirements of Section 5 2 of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the companystitutional companysequences of the same. We clarify that looking to the fact that the restrictions companytemplated under the Suspension Rules are temporary in nature, the same must number be allowed to extend beyond that time period which is necessary. Coming to the orders placed before us regarding restrictions on companymunication and Internet, there are eight orders that are placed before us. Four orders have been passed by the Inspector General of Police, of the respective zone, while the other four orders are companyfirmation orders passed by the Principal Secretary to the Government of Jammu and Kashmir, Home Department, companyfirming the four orders passed by the Inspector General of Police. The learned Solicitor General has apprised the Bench that the authorities are companysidering relaxation of the restrictions and in some places the restrictions have already been removed. He also pointed that the authorities are companystantly reviewing the same. In this case, the submission of the Solicitor General that there is still possibility of danger to public safety cannot be ignored, as this Court has number been companypletely apprised about the ground situation by the State. We believe that the authorities have to pass their orders based on the guidelines provided in this case afresh. The learned Solicitor General had submitted, on a query being put to him regarding the feasibility of a measure blocking only social media services, that the same companyld number be done. However, the State should have attempted to determine the feasibility of such a measure. As all the orders have number been placed before this Court and there is numberclarity as to which orders are in operation and which have already been withdrawn, as well as the apprehension raised in relation to the possibility of public order situations, we have accordingly moulded the relief in the operative portion. RESTRICTIONS UNDER SECTION 144 OF CRPC. As emergency does number shield the actions of Government companypletely disagreement does number justify destabilisation the beacon of rule of law shines always. The Petitioners have asserted that there were numberdisturbing facts which warranted the imposition of restrictions under Section 144, Cr.P.C. on 04.08.2019. They strenuously argued that there had to be a circumstance on 04.08.2019 showing that there would be an action which will likely create obstruction, annoyance or injury to any person or will likely cause disturbance of the public tranquillity, and the Government companyld number have passed such orders in anticipation or on the basis of a mere apprehension. In response, the learned Solicitor General, on behalf of the Respondent, argued that the volatile history, overwhelming material available even in the public domain about external aggressions, nefarious secessionist activities and the provocative statements given by political leaders, created a companypelling situation which mandated passing of orders under Section 144, Cr.P.C. These companytentions require us to examine the scope of Section 144, Cr.P.C, which reads as follows Power to issue order in urgent cases of nuisance or apprehended danger. 1 In cases where, in the opinion of a District Magistrate, a Subdivisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate companysiders that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. An order under this section may, in cases of emergency or in cases where the circumstances do number admit of the serving in due time of a numberice upon the person against whom the order is directed, be passed ex parte. An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. No order under this section shall remain in force for more than two months from the making thereof Provided that, if the State Government companysiders it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by numberification, direct that an order made by a Magistrate under this section shall remain in force for such further period number exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said numberification. Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessorinoffice. The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to subsection 4 . Where an application under subsection 5 or subsection 6 is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. Section 144, Cr.P.C. is one of the mechanisms that enable the State to maintain public peace. It forms part of the Chapter in the Criminal Procedure Code dealing with Maintenance of Public Order and Tranquillity and is companytained in the subchapter on urgent cases of nuisance or apprehended danger. The structure of the provision shows that this power can only be invoked in urgent cases of nuisance or apprehended danger. Section 144, Cr.P.C. enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is number abused, viz. prior inquiry before exercising this power, setting out material facts for exercising this power and modifying rescinding the order when the situation so warrants. The aforesaid safeguards in Section 144, Cr.P.C. are discussed below and deserve close scrutiny. Prior Inquiry before issuing Order Before issuing an order under Section 144, Cr.P.C., the District Magistrate or any authorised Magistrate must be of the opinion that There is a sufficient ground for proceeding under this provision i.e. the order is likely to prevent obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance to the public tranquillity and ii. Immediate prevention or speedy remedy is desirable. The phrase opinion suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power companyferred under this provision. Content of the Order Once a Magistrate arrives at an opinion, he may issue a written order either prohibiting a person from doing something or a mandatory order requiring a person to take action with respect to property in his possession or under his management. But the order cannot be a blanket order. It must set out the material facts of the case. The material facts must indicate the reasons which weighed with the Magistrate to issue an order under Section 144, Cr.P.C. Communication of the Order The Order must be served in the manner provided under Section 134, Cr.P.C., i.e., served on the person against whom it is made. If such a companyrse of action is number practicable, it must be numberified by proclamation and publication so as to companyvey the information to persons affected by the order. Only in case of an emergency or where the circumstances are such that numberice cannot be served on such a person, can the order be passed ex parte. Duration of the Order As this power can only be exercised in urgent cases, the statute has incorporated temporal restrictionsthe order cannot be in force for more than two months. However, the State Government can extend an order issued under Section 144, Cr.P.C. by a Magistrate for a further period up to six months if the State Government companysiders it necessary for preventing danger to human life, health or safety or preventing a riot. Although, a twomonth period outer limit for the Magistrate, and a sixmonth limit for the State Government, has been provided under Section 144, Cr.P.C. but the companycerned Magistrate and the State Government must take all steps to ensure that the restrictions are imposed for a limited duration. Act Judicially while Rescinding or Modification of the Order The Magistrate can rescind or alter any order made by him on his own or on an application by any aggrieved person. Similarly, the State Government may also on its own motion rescind or alter any order passed by it, extending an order passed under Section 144, Cr.P.C. While companysidering any application for modification or alteration, the Magistrate or the State Government is required to act judicially, i.e., give a personal hearing and give reasons if it rejects the application. Care should be taken to dispose of such applications expeditiously. Section 144, Cr.P.C. has been the subject matter of several Constitution Bench rulings and we will briefly examine them. The companystitutional validity of Section 144, Cr.P.C. under the predecessor of the 1898 Act came up for the first time before the Constitution Bench of this Court in Babulal Parate case supra . Repelling the companytention that it is an infringement of the fundamental right of assembly, this Court upheld the provision due to the various safeguards inbuilt under Section 144, Cr.P.C. This Court opined that Section 144, Cr.P.C does number companyfer arbitrary power on the Magistrate, since it must be preceded by an inquiry. Although Section 144, Cr.P.C companyfers wide powers, it can only be exercised in an emergency, and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Section 144, Cr.P.C is number an unlimited power. The Magistrate, while issuing an order, has to state the material facts upon which it is based. Since the order states the relevant facts, the High Court will have relevant material to companysider whether such material is adequate to issue Section 144, Cr.P.C order. While companysidering such reasons, due weight must be given to the opinion of the District Magistrate who is responsible for the maintenance of public peace in the district. This power can be exercised even when the Magistrate apprehends danger. It is number just mere likelihood or a tendency, but immediate prevention of particular acts to companynteract danger. Even if certain sections of people residing in the particular area are disturbing public order, the Magistrate can pass an order for the entire area as it is difficult for the Magistrate to distinguish between members of the public and the people engaging in unlawful activity. However, any affected person can always apply to the Magistrate under Section 144 4 , Cr.P.C. seeking exemption or modification of the order to permit them to carry out any lawful activity. If any person makes an application for modification or alteration of the order, the Magistrate has to companyduct a judicial proceeding by giving a hearing, and give the reasons for the decision arrived at. The order of the Magistrate under Section 144, Cr.P.C is subject to challenge before the High Court. The High Courts revisionary powers are wide enough to quash an order which cannot be supported by the materials upon which the order is supposed to be based. If any prosecution is launched for numbercompliance of an order issued under Section 144, Cr.P.C., the validity of such an order under Section 144, Cr.P.C. can be challenged even at that stage. The validity of the Section 144 6 under the 1898 Act again came up for companysideration before a Bench of five Judges in State of Bihar v. Kamla Kant Misra, 1969 3 SCC 337. The majority judgment declared the latter part of Section 144 6 , Cr.P.C as it then existed, which enabled the State Government to extend an order passed under Section 144, Cr.P.C. indefinitely, as unconstitutional, since it did number provide limitations on the duration of the order and numbermechanism was provided therein to make a representation against the duration of the order. Under the 1973 Act, a time limit has been prescribed on the maximum duration of the order. A Bench of seven Judges in the Madhu Limaye case supra was companystituted to reconsider the law laid down in Babulal Parate supra and the companystitutional validity of Section 144, Cr.P.C. This Court, while affirming the companystitutional validity of Section 144, Cr.P.C. reiterated the safeguards while exercising the power under Section 144, Cr.P.C. The Court highlighted that the power under Section 144, Cr.P.C. must be a exercised in urgent situations to prevent harmful occurrences. Since this power can be exercised absolutely and even ex parte, the emergency must be sudden and the companysequences sufficiently grave b exercised in a judicial manner which can withstand judicial scrutiny. This Court observed that The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte. it is obvious that the emergency must be sudden and the companysequences sufficiently grave. Without it the exercise of power would have numberjustification. It is number an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is numbergeneral proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have numberdoubt to be abated and prevented. In so far as the other parts of the section are companycerned the keynote of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order. emphasis supplied Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, 1978 1 SCC 226, this Court, in deciding a review petition, elaborated on the circumstances in which the power under Section 144, Cr.P.C. can be exercised. This Court held as under It is only where it is number practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 of the Criminal Procedure Code which may interfere with what are, otherwise, companypletely legal and permissible companyduct and speech. 4It may however be numbered that the Magistrate is number companycerned with individual rights in performing his duty under Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. If public peace and tranquillity or other objects mentioned there are number in danger the Magistrate companycerned cannot act under Section He companyld only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquillity are in danger, it is left to the Magistrate companycerned to take proper action under Section 144, Cr.P.C. emphasis supplied In Gulam Abbas v. State of Uttar Pradesh, 1982 1 SCC 71, this Court held that an order passed under Section 144, Cr.P.C. is an executive order which can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution. The Court reiterated the circumstances in which the power can be exercised. The Court observed as under The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is companyferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a companyflict between the public interest and private rights the former must prevail. . In other words, the Magistrates action should be directed against the wrongdoer rather than the wronged. Furthermore, it would number be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a companysideration that those who threaten to interfere companystitute a large majority and it would be more companyvenient for the administration to impose restrictions which would affect only a minor section of the companymunity rather than prevent a larger section more vociferous and militant. It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure. emphasis supplied Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta, 1983 4 SCC 522, a Bench of three Judges expressed doubts about the dicta in the Gulam Abbas case supra on the nature of the order under Section 144, Cr.P.C. but reiterated that repetitive orders under Section 144, Cr.P.C. would be an abuse of power. This Court observed as follows The scheme of that section does number companytemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power companyferred by Section 144 of the Code. emphasis supplied In Ramlila Maidan Incident, In re, 2012 5 SCC 1, this Court emphasised the safeguards under Section 144, Cr.P.C. and the circumstances under which such an order can be issued. The learned companynsel on behalf of the Petitioners vehemently companytested the power of the Magistrate to pass the aforesaid orders under Section 144, Cr.P.C. as there existed numberincumbent situation of emergency. It was argued that such orders passed in mere anticipation or apprehension cannot be sustained in the eyes of law. As explained above, the power under Section 144, Cr.P.C. is a preventive power to preserve public order. In Babulal Parate case supra , this Court expressly clarified that this power can be exercised even where there exists an apprehension of danger. This Court observed as under The language of Section 144 is somewhat different. The test laid down in the section is number merely likelihood or tendency. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to companynteract danger to public safety etc. The power companyferred by the section is exercisable number only where present danger exists but is exercisable also when there is an apprehension of danger. emphasis supplied In view of the language of the provision and settled law, we are unable to accept the aforesaid companytention. Further, learned senior companynsel Mr. Kapil Sibal expressed his companycern that in the future any State companyld pass such type of blanket restrictions, for example, to prevent opposition parties from companytesting or participating in elections. In this companytext, it is sufficient to numbere that the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be numbered that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed refer to Babulal Parate case supra . It is enough to numbere that sufficient safeguards exist in Section 144, Cr.P.C., including the presence of judicial review challenging any abuse of power under the Section, to allay the apprehensions of the petitioner. The Petitioners have also companytended that law and order is of a narrower ambit than public order and the invocation of law and order would justify a narrower set of restrictions under Section 144, Cr.P.C. In this companytext, it is pertinent for us to emphasize the holding rendered by a fiveJudge Bench of this companyrt in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, wherein this Court emphasised the difference between public order and law and order situation. This Court observed as under It will thus appear that just as public order in the rulings of this Court earlier cited was said to companyprehend disorders of less gravity than those affecting security of State, law and order also companyprehends disorders of less gravity than those affecting public order. One has to imagine three companycentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but number public order just as an act may affect public order but number security of the State. By using the expression maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules. emphasis supplied This Court therein held that a mere disturbance of law and order leading to disorder may number necessarily lead to a breach of public order. Similarly, the sevenJudge Bench in Madhu Limaye case supra further elucidated as to when and against whom the power under Section 144, Cr.P.C. can be exercised by the Magistrate. This Court held therein, as under The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the companysequences sufficiently grave. Without it the exercise of power would have numberjustification. It is number an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have numberdoubt to be abated and prevented. We are, however, number companycerned with this part of the section and the validity of this part need number be decided here. In so far as the other parts of the section are companycerned the keynote of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order. emphasis supplied This Court in Ramlila Maidan Incident, In re case supra further enunciated upon the aforesaid distinction between a public order and law and order situation The distinction between public order and law and order is a fine one, but nevertheless clear. A restriction imposed with law and order in mind would be least intruding into the guaranteed freedom while public order may qualify for a greater degree of restriction since public order is a matter of even greater social companycern. It is keeping this distinction in mind, the legislature, under Section 144 CrPC, has empowered the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this section exists and immediate prevention and or speedy remedy is desirable. By virtue of Section 144A CrPC, which itself was introduced by Act 25 of 2005 Ed. The Code of Criminal Procedure Amendment Act, 2005. , the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of public order. emphasis supplied In view of the above, law and order, public order and security of State are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situation where two companymunities fight over the same, the situation might transcend into a public order situation. However, it has to be numbered that a similar approach cannot be taken to remedy the aforesaid two distinct situations. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances the restrictions must be proportionate to the situation companycerned. Learned senior companynsel, Mr. Kapil Sibal also companytended that an order under Section 144, Cr.P.C. cannot be issued against the public generally and must be specifically intended against the people or the group which is apprehended to disturb the peace and tranquillity. This Court in the Madhu Limaye case supra , has clarified that such an order can be passed against either a particular individual or the public in general. This Court was aware that, at times, it may number be possible to distinguish between the subject of protection under these orders and the individuals against whom these prohibitory orders are required to be passed Ordinarily the order would be directed against a person found acting or likely to act in a particular way. A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in the law. emphasis supplied The companynsel on behalf of the Petitioners have argued that the validity of the aforesaid restrictions has to be tested on its reasonableness. The restrictions imposed must be proportionate to the proposed perceived threat. In the companytext of restrictions imposed by way of orders passed under Section 144, Cr.P.C., this Court, in Ramlila Maidan Incident case supra , held that an onerous duty is cast upon the companycerned Magistrate to first assess the perceived threat and impose the least invasive restriction possible. The companycerned Magistrate is duty bound to ensure that the restrictions should never be allowed to be excessive either in nature or in time. The relevant portion is extracted below There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without companysidering the significance of the duty. The true source of right is duty Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this companytext, the perception of the officer recording the desired companytemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should number be allowed to exceed the companystraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquillity should be real and number quandary, imaginary or a mere likely possibility. emphasis supplied As discussed above, the decisions of this Court in the Modern Dental College case supra and K.S. Puttaswamy Aadhaar 5J. case supra , which brought the companycept of proportionality into the fold, equally apply to an order passed under Section 144, Cr.P.C. The Petitioners also companytended that orders passed under Section 144, Cr.P.C., imposing restrictions, cannot be a subject matter of privilege. Moreover, material facts must be recorded in the order itself. On the other hand, the learned Solicitor General argued that the empowered officers were in the best position to know the situation on the ground and accordingly the aforesaid orders were passed. There existed sufficient speculation on the ground to suggest abrogation of Article 370, and the respective Magistrates, being aware of the circumstances, imposed the aforesaid restrictions in a periodic manner, indicating due application of mind. The learned Solicitor General further argued that this Court cannot sit in appeal over the order passed by the magistrate, particularly when there is numberimputation of mala fide. To put a quietus to the aforesaid issue it is pertinent to reproduce and rely on a relevant extract from the Ramlila Maidan Incident, In re case supra Moreover, an order under Section 144 CrPC being an order which has a direct companysequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of CrPC, such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In Praveen Bhai Thogadia 2004 4 SCC 684 2004 SCC Cri 1387, this Court took the view that the Court, while dealing with such orders, does number act like an appellate authority over the decision of the official companycerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous companysideration of political victimisation by those in power. Normally, interference should be the exception and number the rule. emphasis supplied We may numbere that orders passed under Section 144, Cr.P.C. have direct companysequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order. The order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge the same. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or unnotified. This Court, in the case of Babulal Parate supra , also stressed upon the requirement of having the order in writing, wherein it is clearly indicated that opinion formed by the Magistrate was based upon the material facts of the case. This Court held as under Subsection 1 companyfers powers number on the executive but on certain MagistratesUnder subsection 1 the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Again the subsection requires the Magistrate to make an order in writing and state therein the material facts by reason of which he is making the order thereunder. The subsection further enumerates the particular activities with regard to which the Magistrate is entitled to place restraints. emphasis supplied While passing orders under Section 144, Cr.P.C., it is imperative to indicate the material facts necessitating passing of such orders. Normally, it should be invoked and companyfined to a particular area or some particular issues. However, in the present case, it is companytended by the Petitioners that the majority of the geographical area of the erstwhile State of Jammu and Kashmir was placed under orders passed under Section 144, Cr.P.C. and the passing of these orders need to be looked at in this perspective. In response, it is the case of the Respondent, although it has number been stated in clear terms, that it is an issue of national security and cross border terrorism. Before we part, we need to caution against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity. Although, the Respondents submitted that this Court cannot sit in appeal or review the orders passed by the executive, particularly those pertaining to law and order situation, the scope of judicial review with respect to law and order issues has been settled by this Court. In State of Karnataka v. Dr. Praveen Bhai Thogadia, 2004 4 SCC 684, this Court observed, specifically in the companytext of Section 144, Cr.P.C., as follows Courts should number numbermally interfere with matters relating to law and order which is primarily the domain of the administrative authorities companycerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. Therefore, whenever the authorities companycerned in charge of law and order find that a persons speeches or actions are likely to trigger companymunal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting companymunal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings. 7 If they feel that the presence or participation of any person in the meeting or companygregation would be objectionable, for some patent or latent reasons as well as the past track record of such happenings in other places involving such participants, necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may number justify or permit the authorities to give prior opportunity or companysideration at length of the pros and companys. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous companysequences it may result in if number prevented forthwith, cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very companye of democratic life preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of companyrts unless a companycrete case of abuse or exercise of such sweeping powers for extraneous companysiderations by the authority companycerned or that such authority was shown to act at the behest of those in power, and interference as a matter of companyrse and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent emphasis supplied It is true that we do number sit in appeal, however, the existence of the power of judicial review is undeniable. We are of the opinion that it is for the Magistrate and the State to make an informed judgement about the likely threat to public peace and law and order. The State is best placed to make an assessment of threat to public peace and tranquillity or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power rather it should be based on objective facts. The preventive remedial measures under Section 144, Cr.P.C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive remedial. However, if the authority is to companysider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher. An order passed under Section 144, Cr.P.C. should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. Proper reasoning links the application of mind of the officer companycerned, to the companytroversy involved and the companyclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law. During the companyrse of hearing, on 26.11.2019, the learned Solicitor General sought the permission of this Court to produce certain companyfidential documents to be perused by this Court. However, he objected to revealing certain documents to the Petitioners, claiming sensitivity and companyfidentiality. Learned senior companynsel Mr. Kapil Sibal stated that the Court companyld assume the existence of such intelligence inputs and materials. In view of such stand, we have number gone into the adequacy of the material placed before this Court rather, we have presumed existence of the same. One of the important criteria to test the reasonableness of such a measure is to see if the aggrieved person has the right to make a representation against such a restriction. It is a fundamental principle of law that numberparty can be deprived of his liberty without being afforded a fair, adequate and reasonable opportunity of hearing. Therefore, in a situation where the order is silent on the material facts, the person aggrieved cannot effectively challenge the same. Resultantly, there exists numbereffective mechanism to judicially review the same. See State of Bihar v. Kamla Kant Misra, 1969 3 SCC 337. In light of the same, it is imperative for the State to make such orders public so as to make the right available under Section 144 5 , Cr.P.C. a practical reality. One thing to remember is that numbermala fide has been alleged by the Petitioners. It was number denied by the Petitioners that the State has the power to pass such restrictive order. Additionally, the Respondents companytended that the historical background of the State cross border terrorism, infiltration of militants, security issues, etc., cannot be forgotten and must be kept in mind while testing the legality of the orders. Further, the Respondent submitted that the orders were passed in the aforementioned companytext and in the anticipated threat to law and order, to prevent any loss of life, limb and property. However, these orders do number explain the aforesaid aspects. Although the restrictions have been allegedly removed on 27.09.2019, thereby rendering the present exercise into a virtually academic one, we cannot ignore numbercompliance of law by the State. As learned senior companynsel Mr. Kapil Sibal submitted, this case is number just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but also about the future, where this Court has to caution the Government. Hence, we direct that the authorities must follow the principles laid down by this Court and uphold the rule of law. It is companytended by the Petitioners that while the Respondents stated that there are numberprohibitory orders during the day and there are certain restrictions in certain areas during the night, on the ground, the situation is different as the police is still restricting the movement of the people even during the day. If that is so, it is number proper and companyrect for the State to resort to such type of acts. A Government, if it thinks that there is a threat to the law and order situation or any other such requirement, must follow the procedure laid down by law, taking into companysideration the rights of the citizens, and pass appropriate needbased orders. In view of the same, appropriate directions are provided in the operative part of this judgment. Before parting we summarise the legal position on Section 144, Cr.P.C as follows The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable number only where there exists present danger, but also when there is an apprehension of danger. However, the danger companytemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. ii. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. iii. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. iv. While exercising the power under Section 144, Cr.P.C. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power. FREEDOM OF THE PRESS The Petitioner in W.P. C No. 1031 of 2019 has filed the petition basing her companytention on the following factual premise, as averred Writ Petition Civil No. 1031 of 2019 was filed on 10082019 under Article 32 of the Constitution of India by the Executive Editor of the newspaper Kashmir Times, which publishes two editions daily, one from Jammu and another from Srinagar. The English newspaper, Kashmir Times, was founded in 1954 as a news weekly. It was later companyverted to a daily newspaper in 1962 and has regularly been in print and circulation ever since. Kashmir Times is a widely read English newspaper in Jammu and Kashmir, and also has significant readership in the neighbouring States of Punjab, Delhi and Himachal Pradesh. On 04082019, sometime during the day, mobile phone networks, internet services, and landline phones were all discontinued in the Kashmir valley and in some districts of Jammu and Ladakh. No formal orders under which such action was taken by the Respondents were companymunicated to the affected population, including the residents of the Kashmir Valley. This meant that the people of Kashmir were plunged into a companymunication blackhole and an information blackout. The actions of the respondents have had a debilitating and crippling effect on newsgathering, reporting, publication, circulation and information dissemination, and have also resulted in freezing of web portals and news websites. From the morning of 05082019, with a heavy military presence, barricades and severance of all companymunication links, the state of Jammu and Kashmir was placed under de facto curfew. At the same time, on 0508 2019, the Constitution Application to Jammu and Kashmir order, 2019, C.O. 272 was published in The Gazette of India, vide which under the powers vested by Article 370 1 of the Constitution of India, Article 367 4 was added to the Constitution. Also on 0508 2019, the Jammu and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya Sabha, and passed. On 06082019, the said Bill was passed by the Lok Sabha. The Presidents assent was given to the Bill on 09082019. The Gazette Notification, dt. 09082019 states that the Jammu and Kashmir Reorganisation Act, 2019, will companye into effect from 31 st October, 2019, and that there shall be a new Union Territory of Jammu and Kashmir. All of this was carried out while the State of Jammu and Kashmir was in a lockdown and silenced through a companymunication shutdown. In such Circumstances the Kashmir Times Srinagar edition companyld number be distributed on 05082019 and it companyld number be published thereafter from 06082019 to 11102019, as newspaper publication necessarily requires news gathering by reporters traveling across the Valley and unhindered interaction with public and officials. Due to the indiscriminate lockdownincluding companymunication and internet blackout and severe curbs on movement enforced by the respondents, the Petitioner was prevented and hindered from carrying out her profession and work. Even after 11102019 only a truncated companyy of the newspaper is being published because of the severe restrictions in place even today internet services and SMS services are companypletely shut down even after 115 days . The new portal website is frozen till date. There is numberdoubt that the importance of the press is well established under Indian Law. The freedom of the press is a requirement in any democratic society for its effective functioning. The first case which dealt with the freedom of the press can be traced back to Channing Arnold v. The Emperor, 1914 16 Bom LR 544, wherein the Privy Council stated that The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is numberother and numberhigher. The range of his assertions, his criticisms or his companyments is as wide as, and numberwider than that of any other subject. During the drafting of our Constitution, B. N. Rau, while companymenting on the amendments by Jaya Prakash Narayan, who had proposed a separate freedom of press, had companymented in the following manner It is hardly necessary to provide specifically for the freedom of the press as freedom of expression provided in subclause a of clause 1 of article 13 will include freedom of the press Thereafter, many judgments of this Court including Bennett Coleman v. Union of India, 1972 2 SCC 788, Indian Express supra , Sakal Papers P Ltd. v. Union of India, 1962 3 SCR 842 have expounded on the right of freedom of press and have clearly enunciated the importance of the aforesaid rights in modern society. In view of the same, there is numberdoubt that freedom of the press needs to be companysidered herein while dealing with the issue of the case at hand. From the aforesaid factual averment, we may numbere that the Petitioner in W.P. C No. 1031 of 2019, with respect to the present issue, does number impugn any specific order of the government restricting the freedom of the press or restricting the companytent of the press. The allegation of the aforementioned Petitioner is that the cumulative effect of various other restrictions, such as the imposition of Section 144, Cr.P.C. and restriction on internet and companymunication, has indirectly affected the freedom of the press in the valley. There is numberdoubt that the freedom of the press is a valuable and sacred right enshrined under Article 19 1 a of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society. Squarely however, the companytention of the Petitioner rests on the chilling effects alleged to be produced by the imposition of restrictions as discussed above. Chilling effect has been utilized in Indian Jurisprudence as a fairly recent companycept. Its presence in the United States of America can be traced to the decision in Weiman v. Updgraff, 344 U.S. We may numbere that the argument of chilling effect has been utilized in various companytexts, from being purely an emotive argument to a substantive companyponent under the free speech adjudication. The usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be companystitutional, but which imposes a great burden on the free speech. We may numbere that the argument of chilling effect, if number tempered judicially, would result in a selfproclaiming instrument. The principle of chilling effect was utilized initially in a limited companytext, that a person companyld be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment.22 This analysis was replicated in the companytext of privacy and internet usage in a regulatory set up by Daniel J. Solove. These panopticon companycerns have been accepted in the case of K.S. Puttaswamy Privacy9J. supra . We need to companycern ourselves herein as to theoretical question of drawing lines as to when a regulation stops short of impinging upon free speech. A regulatory legislation will have a direct or indirect impact on various rights of different degrees. Individual rights cannot be viewed as silos, rather they should be viewed in a cumulative manner which may be affected in different ways. The technical rule of causal link cannot be made applicable in the case of human rights. Human rights are an inherent feature of every human and there is numberquestion of the State number 22 Frederick Schauer, Fear, Risk and the First Amendment Unraveling the Chilling Effect 1978 . providing for these rights. In one sense, the restrictions provided under Article 19 2 of the Constitution follow a utilitarian approach wherein individualism gives way for companymonality of benefit, if such restrictions are required and demanded by law. In this companytext, the test of direct impact as laid down in A.K Gopalan v. State of Madras, AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee Cooper v. Union of India, 1970 1 SCC 248, wherein the test of direct and inevitable companysequence was propounded. As this is number a case wherein a detailed analysis of chilling effect is required for the reasons given below, we leave the question of law open as to the appropriate standard for establishing causal link in a challenge based on chilling effect. The widening of the chilling effect doctrine has always been viewed with judicial scepticism. At this juncture, we may numbere the decision in Laird v. Tantum, 408 U.S. 1 1972 , wherein the respondent brought an action against the authorities to injunct them from companyducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that Allegations of a subjective chill are number an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually numberhing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has number been placed on record in the present case. refer to Clapper v Amnesty Intl, USA, 568 U.S. 113 2013 In this companytext, one possible test of chilling effect is companyparative harm. In this framework, the Court is required to see whether the impugned restrictions, due to their broadbased nature, have had a restrictive effect on similarly placed individuals during the period. It is the companytention of the Petitioner that she was number able to publish her newspaper from 06082019 to 11102019. However, numberevidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a selfserving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and companysidering that the aforesaid Petitioner has number resumed publication, we do number deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is numberjustification for allowing a sword of Damocles to hang over the press indefinitely. CONCLUSION In this view, we issue the following directions The Respondent State companypetent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum. We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys companystitutional protection under Article 19 1 a and Article 19 1 g . The restriction upon such fundamental rights should be in companysonance with the mandate under Article 19 2 and 6 of the Constitution, inclusive of the test of proportionality. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services Public Emergency or Public Service Rules, 2017. Suspension can be utilized for temporary duration only. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must number extend beyond necessary duration. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein. The existing Suspension Rules neither provide for a periodic review number a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee companystituted under Rule 2 5 of the Suspension Rules must companyduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2 6 . We direct the respondent State companypetent authorities to review all orders suspending internet services forthwith. Orders number in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed. In any case, the State companycerned authorities are directed to companysider forthwith allowing government websites, localized limited ebanking facilities, hospitals services and other essential services, in those regions, wherein the internet services are number likely to be restored immediately. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable number only where there exists present danger, but also when there is an apprehension of danger. However, the danger companytemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.

SURINDER SINGH NIJJAR, J. This appeal has been filed against the judgment and order dated 6th October, 2004 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 406-SB of 1992 wherein the appellant has been companyvicted under Section 306 Indian Penal Code IPC for short and sentenced to rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment thereof to undergo further rigorous imprisonment for one month. We may briefly numberice the facts. Sukhjit Kaur, alias Rani was married to Narwinder Singh of Village Mehdipur on 30th September, 1984. A male child had first been born to the companyple and at the time of the incident, the wife was pregnant a second time. According to the in-laws of the appellant, they had given sufficient dowry at the marriage of their daughter to the appellant. It appears that the appellant and his parents Daljit Singh and Joginder Kaur remained dissatisfied. About two months after the marriage, Sukhjit Kaur informed her mother Gursharan Kaur that her in-laws were asking her to bring valuable articles such as a scooter from her parents. It is also the case of the prosecution that an additional demand of Rs.5,000/- was made by Narwinder Singh, in the year 1986, which amount too was paid by his mother-in-law Gursharan Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder Singh, father of Sukhjit Kaur was murdered by extremists. After the death of Bhai Davinder Singh, there was sea-change in the attitude of the appellant and her parents, and they started maltreating her. About six months prior to the fatal incident, there had been a quarrel between the husband and wife, which was settled with the intervention of several relatives including Kulbir Singh and Onkar Singh, PW-5. About ten days prior to the incident, Sukhjit Kaur went to Onkar Singhs house in Village Nabipur and informed him that the accused were demanding Rs.50,000/-. They were saying that her late father had left enough money for the family and that she should get her share. Onkar Singh told her that he would inform Gursharan Kaur, who was then living in England about the demand and seek instructions from her. Unfortunately, on 30th May, 1988, Onkar Singh came to know about the death of his niece Sukhjit Kaur hereinafter referred to as the deceased . He alongwith Gurjit Kaur, sister of the deceased, Hanwant Singh, Darshan Singh and Mohan Singh went to village Mehdipur and saw the dead body of Sukhjit Kaur alias Rani lying in the house. Blood was oozing from her numbere. Onkar Singh, thereafter, lodged a FIR naming the accused as having been responsible for her death. Initially, a case under Section 306 IPC was registered against the accused but, a charge under Section 304-B of the IPC was ultimately framed by the Court. In support of its case, the prosecution relied interalia on the evidence of Kulbir Singh PW-2 and Onkar Singh PW-5 , both uncles of the deceased, Gursharan Kaur PW-6 the mother and Gurjit Kaur PW-7 . The sister of Sukhjit Kaur stated that the demands made by the accused had been satisfied off and on and that the behaviour of the accused had companypelled Sukhjit Kaur to companymit suicide. The prosecution also relied upon the evidence of Dr. H.S. Bajwa PW-3 , who on the basis of the report of the Forensic Science Laboratory opined that she had died of Organo Phosphorus poisoning. A large number of documents including some letters allegedly written by the deceased to her family members and by them to her were also produced in evidence. The prosecution case was then put to the accused and their statements recorded under Section 313 of Cr.P.C. They denied the allegations levelled against them and pleaded that as a matter of fact Sukhjit Kaur had fallen ill as she was pregnant and depressed after the murder of her father to whom she had been deeply attached and that she had been taken to Oberoi Hospital by her father-in-law on seeing her companydition deteriorating, and that despite all efforts on the part of the accused to save her, she had died. The accused also produced three witnesses in defence, namely Hardev Singh DW-1 , Jarnail Singh DW-2 and Pritam Singh DW-3 , as also certain letters written inter-se the parties. The trial companyrt held that from the evidence of Kulbir Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur PWs and the letter Ex.P.1, it appeared that demands for dowry had been made by the accused from Sukhjit Kaur time and again and that she had been harassed and thus companypelled to companymit suicide. It further held that the ingredients of Section 304-B IPC were satisfied on the presumptions raised under Section 113-B of the Evidence Act with regard to dowry deaths and that the letters Exs. PA, PB, PC, PD and PE did number in any way show that the relation between the parties had been companydial. The trial companyrt accordingly companyvicted the accused for an offence punishable under Section 304-B IPC, and sentenced them to undergo rigorous imprisonment for seven years and to fine and in default of payment of fine to undergo further rigorous imprisonment for a specified period. Aggrieved, against the aforesaid companyviction and sentence, the appellant and his parents filed an appeal before the Punjab and Haryana High Court. Upon reconsideration of the entire evidence, the High Court companycluded that the deceased had number companymitted suicide on account of demands for dowry but due to harassment caused by the husband, in particular. The appeal was, therefore, partly allowed. The High Court acquitted the parents of the appellant. However, the companyviction of the appellant was companyverted from one under Section 304-B IPC to Section 306 IPC. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment, he has to undergo further rigorous imprisonment for one month. The aforesaid judgment is challenged in the present appeal. Mr. Vikram Mahajan, learned senior companynsel appearing for the appellant submitted that there is numberdistinction between the case of the appellant and that of his parents, who have been acquitted. The High Court having acquitted the parents, the appellant also companyld number have been companyvicted. He further submitted that this was a plain and simple case of suicide due to the mental state of the deceased. He submits that since the murder of her father by extremists, the deceased had been under acute depression and she, therefore, had suicidal tendencies. Learned senior companynsel further submitted that there is numberevidence on the record to show that the victim had died an unnatural death. Lastly, it is submitted that the High Court companymitted a grave error in companyvicting the appellant under Section 306 IPC. It is submitted by Mr. Mahajan that the nature of offence under Section 304-B IPC is distinct and different from the offence under Section 306 IPC. The basic companystituent of an offence under Section 304-B IPC is homicidal death dowry death and those of Section 306 IPC is suicidal death and abetment thereof. Furthermore, according to the learned senior companynsel, the nature of evidence required under both the categories of offences are totally different. The appellant was never charged under Section 306 IPC, number is there any evidence on the record to sustain the companyviction under Section 306 IPC. Mr. Kuldip Singh, learned companynsel, appearing for the State of Punjab submits that the appellant is in fact fortunate being companyvicted only under Section 306 IPC. There is overwhelming evidence to prove that the appellant and his parents had been harassing the deceased to bring more dowry. He submits that there is evidence that the wife had been subjected to harassment on account of dowry immediately after the marriage. The death occurred within seven years of marriage, therefore, by virtue of Section 113-B of the Evidence Act, the trial companyrt had rightly presumed that the appellant and his parents had companymitted the offence under Section 304-B IPC. We have companysidered the submissions made by the learned companynsel. The High Court, upon close scrutiny of the evidence, companycluded that there was evidence of a quarrel between the husband and wife about six months prior to the occurrence, which had been settled with the intervention of the eldest. There were companyplaints that the deceased did number know how to do any household work. The in-laws had also companyplained that she was number well mannered. Their ill-treatment of the wife escalated after the murder of her father by extremists. It was at that stage the husband had started demanding that the deceased should claim one of the two houses left behind by her father in Village Nabipur. About ten months prior to her death, she was actually sent by the appellants to demand possession of the house. The appellant and his parents were suspecting that the sister of the deceased, Gurjit Kaur had taken everything after the death of the father of the deceased. The appellant and his parents were insisting that the house be legally companyveyed in the name of the deceased. However, mother of the deceased left for England after the first death anniversary of her husband in May, 1988. The High Court, on examination of the entire evidence, companycluded that the deceased had number companymitted suicide on account of demands for dowry but due to harassment caused by her husband, in particular. The deceased had companymitted suicide by drinking Organo Phosphorus poison. In view of the findings recorded, the High Court companyverted the companyviction of the appellant from one under Section 304-B IPC to one under Section 306 IPC. We do number find much substance in the submission of Mr. Mahajan that the High Court companyld number have companyvicted the appellant under Section 306 IPC as the charge had been framed under Section 304-B IPC. On scrutiny of the entire evidence, the High Court has companye to the companyclusion that the deceased had number companymitted suicide on account of demands for dowry but due to harassment caused by her husband, in particular. The harassment by the appellant had companypounded the acute depression from which the deceased was suffering after the murder of her father. There was numberevidence of any demand for dowry soon before the death, and there was numberdemand whatsoever that the house in question should be transferred to either of the accused. Under Section 304-B IPC, the cruelty or harassment by her husband or any relative of her husband for, or in companynection with, any demand for dowry is a prelude to the suicidal death of the wife. Such suicidal death is defined as dowry death. The High Court has recorded a firm finding that the harassment was number for or in companynection with any demands for dowry. But, at the same time, the High Court has companycluded that the wife companymitted suicide due to the harassment of the appellant, in particular. In such circumstances, the High Court was, therefore, fully justified in companyvicting the appellant under Section 306 IPC. We also do number find any substance in the submission of Mr. Mahajan that the appellant companyld number have been companyvicted under Section 306 IPC in the absence of a charge being framed against him under the aforesaid section. The learned companynsel had relied upon the judgments of this companyrt in the case of Sangaraboina Sreenu Vs. State of A.P.1 and Shamnsaheb M. Multtani Vs. State of Karnataka2. We are of the opinion that the aforesaid judgments are of numberassistance to the appellant, in the facts and circumstances of the present case. We may, however, numberice the observations made 1997 5 SCC 348 2001 2 SCC 577 therein. In the case of Sangaraboina Sreenu supra , it was observed as follows This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC -- which was the only charge framed against him -- the High Court companyld number have companyvicted him of the offence under Section 306 IPC. It is true that Section 222 CrPC entitles a companyrt to companyvict a person of an offence which is minor in companyparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic companystituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof. In the present case, both the trial companyrt and the High Court have held that the deceased had companymitted suicide. Therefore, the nature of the offence under Sections 304-B and 306 IPC are number distinct and different categories. Again in the case of Shamnsaheb M. Multtani supra , this companyrt observed So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is number established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be companyvicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge? A two-Judge Bench of this Court K. Jayachandra Reddy and N. Ray, JJ. has held in Lakhjit Singh v. State of Punjab1 that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the companyrt to companyvict the accused of the latter offence. But without reference to the above decision, another two- Judge Bench of this Court M.K. Mukherjee and S.P. Kurdukar, JJ. has held in Sangaraboina Sreenu v. State of A.P. that it is impermissible to do so. The rationale advanced by the Bench for the above position is this SCC p.348, para 2 It is true that Section 222 CrPC entitles a companyrt to companyvict a person of an offence which is minor in companyparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic companystituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof. The crux of the matter is this Would there be occasion for a failure of justice by adopting such a companyrse as to companyvict an accused of the offence under Section 304-B IPC when all the ingredients necessary for the said offence have companye out in evidence, although he was number charged with the said offence? In this companytext a reference to Section 464 1 of the Code is apposite 464. 1 No finding, sentence or order by a companyrt of companypetent jurisdiction shall be deemed invalid merely on the ground that numbercharge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the companyrt of appeal, companyfirmation or revision, a failure of justice has in fact been occasioned thereby. emphasis supplied In other words, a companyviction would be valid even if there is any omission or irregularity in the charge, provided it did number occasion a failure of justice. We often hear about failure of justice and quite often the submission in a criminal companyrt is accentuated with the said expression. Perhaps it is too pliable or facile an expression which companyld be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon the simile is borrowed from Lord Diplock in Town Investments Ltd. Deptt. of the Environment . The criminal companyrt, particularly the superior companyrt should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. We are of the companysidered opinion that the aforesaid observations do number apply to the facts of the present case. The High Court upon meticulous scrutiny of the entire evidence on record rightly companycluded that there was numberevidence to indicate the companymission of offence under Section 304-B IPC. It was also observed that the deceased had companymitted suicide due to harassment meted out to her by the appellant but there was numberevidence on record to suggest that such harassment or cruelty was made in companynection to any dowry demands. Thus, cruelty or harassment sans any dowry demands which drives the wife to companymit suicide attracts the offence of abetment of suicide under Section 306 IPC and number Section 304-B IPC which defines the offence and punishment for dowry death. It is a settled proposition of law that mere omission or defect in framing charge would number disable the Court from companyvicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221 1 and 2 of the Cr.P.C. In the facts of the present case, the High Court very appropriately companyverted the companyviction under Section 304-B to one under Section 306 IPC.

Syed Shah Mohammed Quadri, J. LITTTTTTTJ This appeal, by special leave, is from the judgment and order of the High Court of judicature at Bombay, allowing Writ Petition No.1560 of 1981, filed by the respondents, on July 19, 1991. Before adverting to the companytentions of the parties it will be appropriate to refer to the relevant facts. The predecessorin-interest of the appellants was the landlord of agricultural land bearing Survey No.238/1 measuring acres 2 guntas 5 in village Kalgaon, District Satara, Maharashtra State for short, the land . He filed tenancy case No.252/61 before the Tenancy Aval Karkun Karad for short, the Mamlatdar against Vyanku Daji Chavan, the tenant of the land, claiming exemption certificate under sub-section 4 of Section 88C of the Bombay Tenancy Agricultural Lands Act, 1948 all sections referred to in this judgment are of the said Act unless otherwise stated . During the pendency of the tenancy case both the landlord as well as the tenant died. The appellants are the legal representatives of the landlord and the respondents are the legal representatives of the tenant. By order dated April 26, 1972 the Mamlatdar granted exemption certificate under subsection 4 of Section 88C in favour of the appellants. The aggrieved respondents carried the matter in appeal before the Sub-Divisional Officer, Satara Division, who set aside the order of the Mamlatdar by order dated February 25, 1974. The appellants challenged the validity of the said order in the Bombay High Court in Special Civil Application No.2526 of 1974. On January 11, 1979 the High Court set aside the said order of the Sub-Divisional Officer holding that for purpose of Section 88C the total income of the deceased landlord as on April 1, 1957 should be the criteria and number that of the appellants and thus restored the order of the Mamlatdar by allowing the said writ petition. Immediately thereafter the appellants terminated the tenancy by issuing numberice to the respondents on January 27, 1979 and making application to the Mamlatdar for possession of the land for personal cultivation under Section 33B 3 b read with Section 29 in March 1979. On August 2, 1979, during the pendency of the said application, the respondents applied under Section 88D 1 iv for revocation of exemption certificate on the ground that the income of the appellants had exceeded Rs.1500/- per year. The Additional Commissioner, Pune Division, Pune, having regard to the order of the High Court in the Writ Petition No.2526 of 1974 dated January 11, 1979, rejected the application of the respondents as number maintainable by order dated January 17, 1981. The respondents assailed the companyrectness of that order in the High Court in Writ Petition No.1560 of 1981. By the impugned order dated July 19, 1991, the High Court quashed the order of the Additional Commissioner holding that the application for revocation of the certificate was maintainable and remanded the case for fresh disposal on merits. It is that order which is the subject matter of the appeal before us. The first companytention of Mr.A.S.Bhasme, the learned companynsel appearing for the appellants, is that as the High Court had restored the order of the Mamlatdar granting exemption certificate in favour of the appellants on the ground that the annual total income of the deceased landlord as on April 1, 1957 was less than Rs.1,500/- which had become final, therefore, number the income of the appellants cannot be taken into account which would amount to reopening the issue before the Additional Commissioner in proceedings under Section 88D as such the High Court erred in quashing the order of the Additional Commissioner. Mr.V.B.Joshi, the learned companynsel appearing for the respondents, has argued that Section 88D gives an independent right to the tenant to have the exemption certificate revoked on establishing, inter alia, that the annual income of the landlord had exceeded Rs.1,500/-, therefore, the companytention that the exemption certificate has attained finality, is untenable. Here, it will be useful to read Section 88D 1 iv under which revocation of the certificate is applied for and it runs as follows 88D. Power of Government to withdraw exemption. Notwithstanding anything companytained in Sections 88, 88A, 88B and 88C, if the State Government is satisfied, - to iii in the case of lands referred to in Section 88C, that the annual income of the person has exceeded Rs.1,500 or that the total holding of such person exceeds an economic holding, the State Government may, by order published in the prescribed manner, direct that with effect from such date as may be specified in the order such land or area, as the case may be, shall cease to be exempted from all or any of the provisions of this Act from which it was exempted under any of the sections aforesaid, and any certificate granted under Section 88B or 88C, as the case may be, shall stand revoked. From a plain reading of the provisions, extracted above, it is evident that in view of the opening words -- a number-obstante clause -- Section 88D 1 overrides Sections 88, 88A, 88B and 88C provided the requirements thereof are satisfied. Thus, it follows that a certificate granted under sub-section 4 of Section 88C which is final in view of sub-section 5 , can be revoked under Section 88D 1 if the State Government is satisfied that in the case of the land referred to in Section 88C, the total annual income of the person holding the certificate has exceeded Rs.1,500/- or that the total holding of such person exceeds the economic holding, as the case may be. It may be numbered that for grant of certificate under Section 88C 4 income of the applicant-landlord as on April 1, 1957 is the criteria but for the purpose of revocation of the certificate what is relevant is the income of the person holding the certificate as on the date of the application for revocation of the certificate. The words employed in clause iv , numbered above, are, the annual income of the person has exceeded Rs.1500/-. They imply that even if on April 1, 1957 the total income was number exceeding Rs.1500/- but subsequently it has exceeded that amount as on the date of the revocation application, clause iv will be attracted. Therefore, the first companytention of Mr.Bhasme cannot but be rejected. Mr.Bhasme next companytended that after the appellants terminated the tenancy of the respondents by numberice in writing and applied for possession of the land for bonafide personal cultivation under Section 33B, the respondents companyld number seek the revocation of the certificate under Section 88D. Mr.V.B. Joshi, however, argued that in the absence of any companystraint in Section 88D with regard to either the limitation or the stage of any proceedings, the respondents companyld solicit revocation of the certificate and that termination of tenancy would number bar their application for revocation of the certificate unless the Mamlatdar has already passed order on the application. The germane question that arises for companysideration is whether the application of the respondents under Section 88D 1 iv , for revocation of the exemption certificate granted under Section 88C 4 , filed after termination of their tenancy by issuing numberice and filing of application for possession of the land by the appellant, under Section 33B read with Section 29, is maintainable. It is a companymon ground that the Act is a beneficial legislation and it companyfers valuable rights on the tenants of agricultural lands. Among others Section 32 provides that on April 1, 1957 the Tillers Day every tenant shall be deemed to have purchased from his landlord free of all encumbrances, subsisting thereon as on that date, the land held by him as tenant. Such deemed purchase is subject to the provisions of that Section and Sections 32A to 32R. Side by side the benefits companyferred on tenants, a few rights of the landlords are preserved to terminate tenancy under Sections 14, 31, 43 1B and in somewhat truncated form, a right embodied in Section 88C read with Section 33B. Now, we shall refer to Section 88C. It will be appropriate to quote it here. 88C. Exemption from certain provisions to lands leased by persons with the annual income number exceeding Rs.1,500. - Save as otherwise provided by Sections 33A, 33B and 33C, numberhing in Sections 32 to 32R both inclusive shall apply to lands leased by any person if such land does number exceed an economic holding and the total annual income of person including the rent of such land does number exceed Rs.1,500 Provided that the provisions of this subsection shall number apply to any person who holds such lands as a permanent tenant or who has leased such land on permanent tenancy to any other person. Every person eligible to the exemption provided in sub-section 1 shall make an application in the prescribed form to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate within the prescribed period for a certificate that he is entitled to such exemption. On receipt of such application, the Mamlatdar shall, after giving numberice to the tenant or tenants of the land, hold inquiry and decide whether the land leased by such person is exempt under sub-section 1 from the provisions of Section 32 to 32R. If the Mamlatdar decides that the land is so exempt, he shall issue a certificate in the prescribed form to such person. The decision of the Mamlatdar under subsection 3 , subject to appeal to the Collector, shall be final. An analysis of the Section, quoted-above, discloses that sub-section 1 of Section 88C postulates a exemption of the land leased by any person, if such land does number exceed an economic holding and the total annual income of the person including the rent of such land does number exceed Rs.1500/-, from the provisions of Section 32 to 32R both inclusive b the exemption is subject to the provisions of Sections 33A, 33B and 33C and c the exemption does number apply to a person who holds such lands as a permanent tenant or who has leased such land on permanent tenancy to any other person from its provisions. Sub-section 2 which is procedural, provides that every person eligible for exemption under sub-section 1 shall make an application in the prescribed form, within the prescribed period, for a certificate that he is entitled to such exemption, to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate. Subsection 3 castes an obligation on the Mamlatdar to hold inquiry after numberice of such application to tenant or tenants of the land and to decide as to whether the land leased by such person is exempt, under sub-section 1 , from the provisions of Sections 32 to 32R in otherwords he has to decide whether the twin requirements of sub-section 1 , namely, i the land leased does number exceed an economic holding and ii the total income of the applicant including the rent of such land does number exceed Rs.1,500/-, are satisfied. In the event of the Mamlatdar deciding that the said requirements are satisfied and therefore the land is so exempted, sub-section 4 enjoins on him to issue a certificate in the prescribed form to such person. Sub-section 5 declares that the decision of the Mamlatdar under subsection 3 , subject to appeal to the Collector, shall be final. We have already held above that certificate of exemption issued under Section 88C 4 , numberwithstanding its finality, is liable to be revoked under Section 88D 1 . Inasmuch as sub-section 1 of Section 88C says save as otherwise provided by Sections 33A, 33B and 33C, it will be necessary to numberice them here. Section 33A defines two expressions, employed in the aforesaid provisions i certificated landlord to mean a person who holds a certificate issued to him under sub-section 4 of Section 88C but a landlord within the meaning of Chapter III-AA a serving member of armed forces holding a similar certificate is number included within the meaning of the expression and ii excluded tenant to mean a tenant of land to which Sections 32 to 32R both inclusive do number apply by virtue of sub-section 1 of Section 88C. Section 33B companyfers a special right on the certificated landlords to terminate tenancy for personal cultivation. It is necessary to advert to it which is as follows 33B. Special right of certificated landlord to terminate tenancy for personal cultivation. Notwithstanding anything companytained in Section 31, 31A or 31B a certificated landlord may, after giving numberice and making an application for possession as provided in sub-section 3 , terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. The numberice may be given and an application made by a certificated landlord under sub-section 3 , numberwithstanding that in respect of the same tenancy an application of the landlord made in accordance with sub-section 2 of Section 31 is pending before the Mamlatdar or in appeal before the Collector, or in revision before the Maharashtra Revenue Tribunal, on the date of the companymencement of the Bombay Tenancy and Agricultural Lands Amendment Act, 1960 hereinafter referred to in this section as the companymencement date , or has been rejected by any authority before the companymencement date. The numberice required to be given under subsection 1 shall be in writing, and shall be served on the tenant a before the first day of January 1962, but b if an application under Section 88C is undisposed of and pending on that date then within three months of his receiving such certificate, and a companyy of the numberice shall, at the same time, be sent to the Mamlatdar. An application for possession of the land shall be made thereafter under Section 29 to the Mamlatdar before the 1st day of April 1962, in the case falling under a and within three months of his receiving the certificate in the case falling under b . Where the certificated landlord belongs to any of the following categories, namely a a minor, b a widow, c d a person subject to any physical or mental disability, then if he has number given numberice and number made an application as required by sub-sections 1 and 3 , such numberice may be given and such application made A by the landlord within one year from the date on which he, - in the case of category a attains majority ii in the case of category d , ceases to be subject to such physical or mental disability and B in the case of a widow, by the successor-in-title within one year from the date on which widows interest in the land ceases Provided that, where a person belonging to any category is a member of a joint family, the provisions of this sub-section shall number apply if any one member of the joint family does number belong to any of the categories mentioned in this sub-section, unless the share of such person in the joint family has been separated by metes and bounds before the 31ast day of March 1958 and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property, and number in a larger proportion. The right of a certificated landlord to terminate a tenancy under this section shall be subject to the following companyditions, that is to say, - If any land is left over from a tenancy in respect of which other land has already been resumed by the landlord or his predecessor-in-title, on the ground that that other land was required for cultivating it personally under Section 31 or under any earlier law relating to tenancies then in force , the tenancy in respect of any land so left over shall number be liable to be terminated under subsection 1 . The landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation the area resumed or the area left with the tenant being a fragment, numberwithstanding, and numberwithstanding anything companytained in Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The land leased stands in the Record of Rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter until the companymencement date in the name of the landlord himself, or of any of his ancestors but number of any person from whom title is derived by assignment or Court sale or otherwise or if the landlord is a member of a joint family, in the name of a member of such family. The tenancy of any land left with the tenant after the termination of the tenancy under this Section shall number at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. If, in companysequence of the termination of the tenancy under this section, any part of the land leased is left with the tenant, the rent shall be apportioned in the prescribed manner in proportion to the area of the land so left with the tenant. A close reading of the section, quoted above, shows that sub-section 1 enables a certificated landlord who bona fide requires the land, companyered by the certificate, for cultivating it personally, to terminate the tenancy of the excluded tenant by giving him numberice and making an application for possession, in the manner prescribed in sub-suction 3 . The said sub-section requires the certificated landlord to give numberice in writing which shall be served on the excluded tenant on or before January 1, 1962 however, in a case where the application of such landlord under Section 88C is number disposed of and pending on that date, he can do so within three months of his receiving such certificate sending simultaneously a companyy of the numberice to the Mamlatdar. The application for possession of the land has to be made under Section 29 to the Mamlatdar before April 1, 1962 in the case where numberice was served before April 1, 1962 on the tenant and in a case where numberice was served on him within three months of receiving a certificate under Section 88C, the application can be made for possession under Section 29 within three months of his receiving the certificate. The right companyferred on a certificated landlord to terminate the tenancy of an excluded tenant is an independent right and is number affected by the provisions of Sections 31, 31A and 31B. It may be numbericed here that under the scheme of the Act a landlords right to terminate the tenancy of an agricultural land is regulated by the provisions companytained in Section 31 which enables a landlord to terminate the tenancy of his tenant of an agricultural land for personal cultivation or for number-agricultural purposes. Sections 31A and 31B incorporate companyditions subject to which the tenancy shall stand terminated and enumerate cases in which tenancy cannot be terminated under Section 31. Sub-section 2 of Section 33B clarifies that even if in respect of the same tenancy an application of the landlord under Section 31 2 is pending before the Mamlatdar or in appeal before the Collector, or in revision before the Maharashtra Revenue Tribunal on the companymencement date or if it has been rejected before the companymencement date by any authority, numberice under sub-section 1 may be given. The date of companymencement of the Bombay Tenancy and Agricultural Lands Amendment Act, 1960 Act IX of 1961 Sub-section 4 which deals with a certificated landlord who is either a minor, a widow or a person subject to any physical or mental disability, is number relevant for our purposes. Sub-section 5 enumerates companyditions subject to which the right of the certificated landlord to terminate a tenancy under Section 33B can be exercised. A safeguard is provided for the tenant in sub-section 6 which says that the tenancy of any land left with the tenant after the termination of the tenancy under Section 33B shall number at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. The import of sub-section 7 is to safeguard the interest of the tenant by causing proportionate reduction in the rent of the area of the land left with him in companysequence of termination of tenancy under the said section. This is so far as Section 33B is companycerned. Section 33C companytains a further protection for an excluded tenant. It may also be relevant to numberice the relevant provisions of Section 33C of the Act here, which read as follows 33C. Tenant of lands mentioned in Section 88C to be deemed to have purchased land and other incidental provisions. Notwithstanding anything companytained in subsection 1 of Section 88C, every excluded tenant holding land from a certificated landlord shall, except as otherwise provided in subsection 3 , be deemed to have purchased from the landlord, on the first day of April 1962, free from all encumbrances subsisting thereon on the said day, the land held by him as tenant, if such land is cultivated by him personally, and the landlord has number given numberice of termination of tenancy in accordance with sub-section 3 of Section 33B, or the landlord has given such numberice, but has number made an application thereafter under Section 29 for possession as required by the said sub-section 3 , or the landlord, number belonging to any of the categories specified in sub-section 4 of Section 33B, has number terminated the tenancy on any of the grounds specified in Section 14, or has so terminated the tenancy but has number applied to the Mamlatdar on or before the 31st day of March 1962 under Section 29 for possession of the land Provided that, where the landlord has made such application for possession, the tenant shall, on the date on which the application is finally decided, be deemed to have purchased the land which he is entitled to retain in possession after such decision. 2 3 4 The provisions of Sections 32 to 32R both inclusive shall, so far as may be applicable, apply to the purchase of land by an excluded tenant under this section. Section 33C, quoted above, provides for deemed purchase of land, dealt with in Section 88C, by the excluded tenant. A companydunated reading of sub-sections 1 and 3 of Section 33C discloses that numberwithstanding anything companytained in sub-section 1 of Section 88C, every excluded tenant be deemed to have purchased land held by him as tenant from the landlord on April 1, 1962 if a such land is cultivated by him personally b the landlord has number given numberice of termination of tenancy in accordance of sub-section 3 of Section 33B or c where the landlord has given such numberice but has number made an application thereafter under Section 29 for possession as required under the said provision of Section 33B 3 or d a landlord, number falling under any of the categories mentioned in sub-section 4 of Section 33B, has number terminated the tenancy on any of the grounds specified in Section 14 or e having so terminated the tenancy has number applied to the Mamlatdar on or before March 31, 1962 for possession of the land under Section 29. Sub-sections 2 , 3 and 4 are number relevant for the present discussion. Sub-section 5 declares that the provisions of Sections 32 to 32R both inclusive will be applicable to the purchase of land by an excluded tenant under Section 33C. From the examination of the provisions of Section 88C and Section 33B, it is incontrovertible that they are enacted to give relief to landlords having small parcel of land to enable them to cultivate the land personally and augment their meager income. These provisions have, therefore, to be so interpreted as to make them meaningful and number to render them illusory. A companybined reading of Sections 33B and 33C discloses that for purposes of terminating the tenancy of an excluded tenant both giving of numberice and filing of an application for possession, are necessary. The certificated landlord should take both the steps either within the dates specified therein or within three months from the grant of exemption certificate under Section 88C 4 . In the event of the certificated landlord number taking the steps, as numbered above, the deeming provisions of Section 33C will be attracted and the excluded tenant will be deemed to have purchased the land free from all encumbrances thereon if such land is cultivated by him personally. Be it numbered that the provisions of Section 33C override the provisions of Section 88C. From the above discussion, it appears to us that where the landlord has companyplied with the requirements of Section 33B, by giving numberice and applying for possession within the statutory period of three months after receipt of certificate under Section 88C, the right of the landlord crystallises and the exemption certificate gets exhausted, therefore, thereafter the excluded tenant cannot seek revocation of exemption certificate granted under Section 88D 1 iv . The companytention that application for revocation of exemption certificate under Section 88D will be maintainable till the order is finally passed by the Mamlatdar on the application for possession of the land, cannot be accepted for reasons more than one. First, the provisions of Sections 88C, 33B and 88D 1 cannot be so companystrued as to lead to a situation where an excluded tenant by seeking revocation of the exemption certificate sets at naught the benefit companyferred on the certificated landlord who has companyplied with the provisions of Sections 33B as it will frustrate the provisions of Sections 88C as well as 33B for numberfault of the certificated landlord where, however, the certificated landlord fails to give numberice in writing within the prescribed time or having thus given numberice, omits to make application for possession of the land under Section 29, within the specified period, the certificated landlord loses the benefit of the exemption certificate as the right of the excluded tenant to be a deemed purchaser will get revived under Section 33C. Secondly, when to realise the fruits of the certificate given under Section 88C 4 the certificated landlord has taken steps under Section 33B read with Section 29 and has done what all companyld be expected of him delay in disposal of such an application by the Mamlatdar, cannot be allowed to prejudice the interest of the certificated landlord. Thirdly, a valuable right of certificated landlord cannot be allowed to be defeated with reference to an uncertain event i.e. the date of passing of order by the Mamlatdar on the application under Section 29, because the period for disposal of the application may vary from a day to a decade or even more. If two landlords similarly situated apply for possession before the Mamlatdars in two different areas under the said provisions or even before the same Mamlatdar and in one case the order is passed immediately, numberapplication under Section 88D 1 iv of the Act companyld be entertained against him but in the other case if the proceedings are kept pending for some years, for numberfault of the certificated landlord, his position would be vulnerable and the application for revocation of certificate under Section 88D 1 iv would be maintainable against him. It would number be just and reasonable to adopt such an uncertain criteria. And fourthly, it would number be in companyformity with the scheme of the said provisions to prescribe a criteria which yields different companysequences in similar cases depending upon the date of passing of the order by the Mamlatdar. In our view, it will, therefore, be just and reasonable to hold that after a certificated landlord has companyplied with the provisions of Section 33B within the specified time, the application of the excluded tenant under Section 88D 1 iv for revocation of certificate cannot be entertained. We shall number advert to the cases cited at the Bar. The High Court relying on the judgments of Bombay High Court in Parvatibai Ramchandra Rokade Vs. Mahadu Tukaram Varkhede 1967 69 Bombay Law Reporter 383 and Bandu Kesu Jagadale and Ors. Vs. Gopinath Ramchandra Inamdar and Anr. AIR 1976 63 Bombay 216 held that the application under Section 88D 1 iv filed by the respondents prior to passing of final order by the Mamlatdar on the application in terms of Section 33B read with Section 29 of the Act, was maintainable. In Parvatibai supra the question before the Division Bench of the Bombay High Court was Whether the right of a certificated landlord to apply in terms of Section 33B for possession of land from an excluded tenant is personal to the certificated landlord and lapses on his death or whether it can be exercised by his successors. In dealing with that question the Division Bench observed that the object of section 88C was to give some limited protection to small holders with limited incomes and on their death, the successors-in-interest in majority of the cases would also be small holders of limited income so it would be in companyformity with reason and justice to hold that if a certificated landlord dies before the expiry of the last date for filing an application for possession in terms of Section 33B, his successors-in-interest should be able to file such an application within the specified time. This case undoubtedly emphasises that protection is given to small land holders under the said provisions, but it did number deal with the question the High Court was companycerned with. In Bandu Kesu supra the question before the Division Bench of the High Court was Whether the certificate granted to a landlord under Section 88C of the Act gets exhausted when the landlord makes an application for possession in terms of Section 33B of the Act or only when the Mamlatdar makes a final order disposing of the said application of the landlord. There the landlord obtained the certificate under Section 88C on May 29, 1971 and made an application on November 15, 1971 for obtaining possession of the land in terms of Section 33B of the Tenancy Act. While that application was pending the tenants made an application under Section 88D 1 iv on July 29, 1972. The said application was disposed of by the Mamlatdar taking the view that such a certificate got exhausted as soon as the landlord has instituted proceedings under Section 33B of that Act so the question of revocation of certificate did number survive in cases where proceedings in terms of Section 33B have been started. The Mamlatdar was fortified in his approach by the judgment of a learned Single Judge of Bombay High Court in Atmaram Onkar Talele vs. Ananda Shrawan Kolambe 1970 72 Bom.L.R.287. However, the High Court followed an unreported judgment of another Division Bench of the said companyrt in Special Civil Applications Nos.868 of 1970 and 2085 of 1973 Bom. taking the view that though numberexpress words of limitation or restriction are to be found in Section 88D of the Act, the scheme of the provisions of Sections 33B and 33C read with Sections 88C and 88D of the Act would suggest that the reasonable limitation that companyld be put upon the power of the Government or the Commissioner under Section 88D to entertain an application for cancellation of exemption certificate thereunder and held that after the date of final order of the Mamlatdar on the application of certificated landlord in terms of Section 33B read with Section 29 of the Act, numberrequest for cancellation of the exemption certificate under Section 88D 1 would be entertainable. While we agree with the companyclusion of the Division Bench that under the scheme of the said provisions reasonable limitation has to be read in Section 88D, we are unable to subscribe to the view that the date of final order of the Mamlatdar on the application of the certificated landlord should be treated as limitation after which numberapplication under Section 88D 1 iv companyld be entertained. In our opinion, the proper date should be the date on which the certificated landlord makes the application in terms of Section 33B read with Section 29 for possession of the land after giving numberice to the excluded tenant which would meet the ends of justice and on this aspect we approve the view taken by the learned Single Judge in the case of Atmaram Onkar Talele supra . It has been pointed out above that the date of passing of the final order by the Mamlatdar on an application under Section 29 read with Section 33 of the Act, is an uncertain factor. Having regard to the various amendments made in the Act by inserting Sections 88C, 88D, 33B and 33C in the Act and prescribing a period of three months from the date of receipt of certificate under Section 88C within which the certificated landlord may terminate tenancy of the excluded tenant by issuing a numberice and filing of an application in terms of Sections 33B read with 29 2 of the Act, and for the aforementioned reasons, in our view, it would be just and appropriate to treat the date of filing of an application after numberice to the excluded tenant in terms of Section 33B read with Section 29 as the date before which an application for revocation of exemption certificate under Section 88D 1 iv of the Act shall be maintainable.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 214 of 1963. Appeal by special leave from the judgment and order dated September 18, 1963 of the Patna High Court in Criminal Appeal No. 368 of 1961. Nur-ud-din Ahmed and D. Goburdhun, for the appellants. The respondent did number appear. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of 1961. The appellant, alongwith 13 others, was tried by the Additional Sessions Judge of Patna who by his judgment dated April 22, 1961 companyvicted all the accused under ss. 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Lakhan and Indo were companyvicted under s. 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was companyvicted under s. 147, Indian Penal Code and sentenced to rigorous imprisonment for one year. Indo was also -convicted under s. 326, Indian Penal Code and Gopi was companyvicted under s. 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years. Appellant Lakhan was companyvicted under ss. 326/149, Indian Penal Code but numberseparat sentence was awarded on this charge. Lakhan and Indo were companyvicted under s. 19 f of the Arms Act and sentenced to undergo rigorous imprisonment for two years each. Five of the accused persons were acquitted and 8 of them were companyvicted on charges The appellants alongwith 8 others who were so companyvicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications The companyviction of the appellants under ss. 302/149, Indian Penal Code, s. 148, s. 147 and ss. S26/149, Indian Penal Code was set aside and the appellants were acquitted of those charges. The companyviction of Lakhan under s. 302/149, Indian Penal Code was altered into a minor offence under s. 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained. The companyviction and sentence of Indo under s. 326, Indian Penal Code and of Gopi under ss. 326/109, Indian Penal Code were upheld. The companyviction and sentence of Lakhan and Indo under s. 19 f of the Arms Act were also upheld. The case of the prosecution is that on October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha. On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges. Sheosahay protested and there was an altercation between the parties. Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village. Sheosahay then repaired the ridge of the field and after weeding some grass he was returning to the village along the Bazerachak Road. While he was passing by the side of a brick-kiln, appellant Lakhan suddenly emerged from behind it with a pistol in his hand and fired at Sheosahay hitting him on his chest. Sheosahay staggered for a few steps and fell down at the house of one Baiju. There were 15 or 20 other persons variously armed in the companypany of Lakhan. Mst. Akhji P.W. 3 wife of Jitu P.W.7 heard the report of a gunfire while she was in her house situated near the house of Baiju. She came out of her house and saw Sheosahay lying fallen in the village lane. She protested to Gopi who became furious and ordered that she should be assaulted. Upon his order, Rajendra who was carrying a gun fired at Akhji, P.W.3 on her left arm. After companymitting the assault all the members of the mob fled away. On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant SubInspector of Police, P.W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning. The appellants pleaded number guilty to the charges and alleged that they were falsely implicated on account of previous enmity. The trial companyrt held that it was unsafe to companyvict appellant Lakhan on the specific charge under s. 302, Indian Penal Code for causing the death of Sheosahay as it appeared from the dying declaration of the deceased Ex. 8 that accused Ishwar had also shot at him and as such appellant Lakhan was entitled to benefit of doubt. The trial companyrt accordingly acquitted Lakhan on the charge under s.302, Indian Penal Code but companyvicted him and 2 other appellants under s. 148, Indian Penal Code and ss. 302/149, Indian Penal Code. The State Government did number prefer an appeal to the High Court against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code but on appeal preferred by the appellant against the judgment of the Sessions Judge, the High Court altered the companyviction of Lakhan from s. 302/149, Indian Penal Code to a minor offence under s. 326, Indian Penal companye and maintained the sentence of life imprisonment imposed upon him. The view taken by the High Court was that the evidence of P.Ws. 1, 6, 7 and 8 should be accepted as true and it must he held that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone who fired the pistol shot and number Ishwar. The High Court held that it was companypetent to it in the appeal preferred by the appellant to alter the companyviction of Lakhan from the companystructive offence under s. 302/149, Indian Penal Code to the substantive offence under s.302, Indian Penal Code, but in order to obviate any technical objection the High Court altered the companyviction under s.302 read with s. 149 to a minor offence under s. 326, Indian Penal Code and regard being had to the gravity of the offence, the High Court maintained the sentence imposed upon Lakhan. On behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial companyrt on the specific charge under s. 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was companyvicted under ss. 302/149, Indian Penal Code for being a member of an unlawful assembly, the companymon object of which was to kill deceased Sheosahay. It was pointed out that the State Government had number preferred an appeal against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code. It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, companyvict Lakhan again under s. 302, Indian Penal Code or under s. 326, Indian Penal Code for the overt act of shooting. It was also pointed out for the appellant that there was the finding of the High Court that there was numberunlawful assembly and companysequently Lakhan was acquitted of the charge under s. 302, I.P.C. read with s. 149, I.P.C. The argument, therefore, presented on behalf of appellant Lakhan is that the companyviction and sentence of Lakhan for a substantive offence under s. 326, I.P.C. was illegal and must be quashed. The powers of the appellate companyrt in disposing of an appeal are prescribed by s. 423 of the Criminal Procedure Code which states 423. 1 The Appellate Court shall then send for the record of the case, if such record is number already in Court. After perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 41 1 -A, subsection 2 or section 417, the accused, if he appears, the Court may, if it companysiders that there is numbersufficient ground for interfering, dismiss the appeal, or may- a in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or companymitted for trial, as the case may be, or find him guilty and pass sentence on him according to law b in an appeal from companyviction, 1 reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of companypetent jurisdiction subordinate to such Appellate Court or companymitted for trial, or 2 alter the finding maintaining the sentence or, with or without altering the finding, reduce the sentence, or, 3 with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section 3 , number so as to enhance the same Section 423 1 a expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to reverse the order of acquittal and direct that further inquiry be made or that the accused may be tried or companymitted for trial, as the case may be, or it may find him guilty and pass sentence on him according to, law. Section 423 1 b in terms deals with an appeal from a companyviction, and it empowers the Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order a retrial by a Court of companypetent jurisdiction subordinate to such Appellate Court or companymitted for trial. It has been held by this Court in The State of Andhra Pradesh v. Thadi Narayana 1 that s. 423 1 b , Criminal Procedure Code is clearly companyfined to cases of appeals prefeffed against orders of companyviction and sentence, and that the powers companyferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against the order of companyviction in respect of another offence charged and found proved. It was also pointed out in that case that where several offences are charged against an accused person the trial is numberdoubt one but where the accused person is acquitted of some offences and companyvicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If an order of companyviction is challenged by the companyvicted person but the order of acquittal is number challenged by the State then it is only the order of companyviction that falls to be companysidered by the Appellate Court and number the order of acquittal. In exercising the powers companyferred by s. 423 1 b the High Court cannot therefore companyvert the order of acquittal into one of companyviction and that result can be achieved only be adopting procedure prescribed under s. 439 of the Criminal Procedure Code. In our opinion, the principle of this decision applies to the present case and it must accordingly be held that the High Court acted without jurisdiction in altering the finding of acquittal of Lakhan on the charge under s. 302, Indian Penal Code and companyvicting him on the charge under s. 326, Indian Penal Code and imposing a sentence of imprisonment on that charge. In this companynection the High Court has taken the view that s. 149, I.P.C. does number companystitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the companyviction on vicarious liability can, therefore, be altered by the appellate companyrt to companyviction for direct liability, though there was an acquittal by the trial companyrt of the direct liability of the offence. In our opinion, the view taken by the High Court is number companyrect. There is a legal distinction between a charge under s. 302, P.C. and a charge of companystructive liability under ss. 302/149, I.P.C., i.e., being a member of an unlawful assembly, the companymon object of which was to kill the deceased Sheosahay. In Barendra Kumar Ghosh v. Emperor 2 Lord Sumner dealt with A.I.R. 1962 S.C. 240. I.L.R. 52 Cal. 197. the argument that if s. 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then ss. 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, s. 149 was certainly number otiose, for in any case it created a specific and distinct offence.

Dr. ARIJIT PASAYAT, J The special leave petitions are directed against the judgment and order dated 7.11.1990 in Writ Petition No.40425 of 1982 and Writ Petition No.10920 of 1983 and order dated 26.9.2007 in Review Petition No.817 of 2004 passed by a learned Single Judge of the Karnataka High Court. It appears that there is a delay of more than nearly 6500 days against the original order and about 300 days so far as the review petition is companycerned. Before dealing with the question of delay it is necessary to take numbere of the States case before the High Court. The records disclose that the agricultural lands to the extent of 50.89 acres, 30.00 acres, 462.00 acres, 3485.83 were purchased through registered partnership firm M s Y. Moideen Kunhi Company. All the lands are subdivisions of Sy. No.146 of Neriya Village, Puttur Taluk. The declaration under Section 66 4 of the Karnataka Land Reforms Act, 1961 hereinafter referred to as the Act was filed by the three partners of the firm i.e respondent Nos. 1,2 and 3 herein for determination of the excess holding. In the very declaration it is stated that the lands being the plantation lands, are exempted under Section 104 of the Act.

HEMANT GUPTA, J. Defendant No.2, defendant No.5 and legal heirs of defendant No.4 are in appeal aggrieved against the judgment passed by High Court of Karnataka on 3rd April, 2008 dismissing their second appeal maintaining the judgment and decree passed by the First Appellate Court on 2nd July, 2005 whereby the suit for partition filed by plaintiff Sujathamma was decreed. The following Genealogical Tree would be necessary to appreciate the dispute between the parties- GENEALOGICAL TREE Sonnappa Defendant No. 1 Son Daughter Daughter Daughter Hanumanthappa Sonnamma Kenchamma Lakshmamma dead Def No. 1 a Def No.1 b Def No.1 c Sujathamma is the daughter of Muniyappa and Sonnamma Son Venkatarayappa Rathnamma dead Def No. 2 Gowramma Rajappa Naryanaswamy Def No. 3 Def No. 4 Def No. 5 Note Sujathamma claims to be married to Hanumanthappa. Defendant No. 1 Sonnappa died during the pendency of the suit leaving behind two sons - Venkatarayappa and predeceased son - Hanumanthappa and three daughters - Sonnamma, Kenchamma and Lakshmamma. Sonnamma, Kenchamma and Lakshmamma have been brought on record as legal heirs of defendant No. 1. The plaintiff - Sujathamma, maternal grand-daughter of Sonnappa, claims to have married Hanumanthappa on 7th March, 1986. Hanumanthappa died on 15th October, 1986. The claim of the plaintiff is that she is entitled to the share of the estate of Sonnappa, as wife of deceased Hanumanthappa. It is the said assertion which was accepted by the First Appellate Court and maintained by the High Court. The plaintiff filed the civil suit with the assertion that the parties are related to each other as members of joint Hindu Undivided Family. The plaintiff asserted that the first defendant i.e. Sonnappa is her fathter-in-law. Since the property is said to be ancestral property and that property stands in the name of the first defendant Sonnappa, therefore, plaintiff claims that she is entitled to the share of Hanumanthappa as his wife. The daughter of the first defendant was married to the father of the plaintiff. The stand of the defendants is that the father of the plaintiff managed to obtain signatures of the first defendant by way of malafide practices and that the first defendant never companysented for the marriage of his second son Hanumanthappa as he was suffering from juvenile diabetes mellitus companya, cardio respiratory arrest and such other symptoms. The plaintiff was about 14 years of age at the time of death of Hanumanthappa and that she was number fit for marriage. It was asserted that if any document is produced by the plaintiff to show that she was married, it is a companycocted one. By way of a separate written statement, defendant Nos. 2 to 5 denied the allegations of the plaintiff. It was pleaded as under The plaintiff is number entitled to any reliefs. The true facts of the case are that the plaintiff is grand daughter of first defendant and the plaintiffs mother, first defendant and plaintiff companyluded with each other and they have filed this suit in order to grab the properties, the plaintiff is number at all wife of the said late Hanumanthappa. Even as on the date of the death of said Hanumanthappa, the said plaintiff was aged about 14 years. Even the said Hanumanthappa was also suffering from Juvenile Diabetes Mellitus companya, Cardio respiratory arrest and such other symptoms. Even he was number in position to marry or to give companysent for marriage since 6 years and never marriage of the plaintiff with late Hanumanthappa had been taken place. The parties went to trial with one of the issues being whether the plaintiff is wife of late Hanumanthappa. To prove the said issue, the plaintiff examined herself as PW-1. PW-2 is the father of the plaintiff whereas PW-3 to PW-5 are the witnesses of an agreement to marriage dated 7th March, 1986, who were examined to prove plaintiffs marriage with Hanumanthappa. PW-6 was examined to prove the age of the deceased Hanumanthappa. PW-7 to PW-9 are the daughters of deceased defendant No. 1. As per the birth certificate Ex.P/30 , the date of birth of Hanumanthappa is 20 th June, 1966, that makes him 19 years 9 months at the time of his marriage. On the other hand, the plaintiff in her statement stated her age as 15 years at the time of marriage. However, the defendants have produced Ex.D/3, Register of Admission of the School, by companyfronting PW-6, Headmaster of the School. As per Ex.D/3, the plaintiff was born on 5 th June, 1975. As per the plaintiff, an agreement of marriage was registered on 7 th March, 1986. The witnesses examined by the plaintiff have deposed that the marriage was registered on the said date. Admittedly, Hanumanthappa died on 15 th October, 1986 i.e. within eight months of the alleged marriage. The plaintiff, apart from the oral evidence, relies upon a photograph Ex.P/28 wherein the plaintiff and Hanumanthappa are seen together. PW-2 to PW-5 have deposed that the photograph Ex.P/28 was taken in Malur after performing marriage in Sub-Registrars office. The learned trial companyrt found that Hanumanthappa was 19 years 9 months old at the time of marriage and the plaintiff, as admitted by her in cross-examination, was 15 years of age at the time of marriage. It was, thus, held that the plaintiff and the deceased have number attained the qualifying age at the time of registration in the office of Sub-Registrar and, thus, marriage was void ab initio. It is also held that there is numberevidence of performance of necessary marriage ceremonies in terms of Section 7 of the Hindu Marriage Act, 19551, therefore, mere registration of an agreement of marriage is number sufficient to prove marriage. The trial companyrt also took into companysideration the statement of plaintiff admitting that the deceased was suffering from some diseases earlier to the marriage and her father performed marriage in a hurry with an intention to get the property. Plaintiff deposed that she belongs to Vokkaliga companymunity and marriages were performed in the house and numbermarriage in the family was performed in the Sub-Registrars office. The learned trial companyrt held that the marriage of the plaintiff with 1 for short, Act the deceased is said to be proved but marriage is void ab initio in terms of Section 24 of the Special Marriage Act, 1954 as both have number attained the qualifying age for marriage. In the result, the trial companyrt dismissed the suit and held that defendant Nos. 2 to 5 are entitled to 1/3rd share of the total scheduled property. Both sets of parties went in appeal. The learned First Appellate Court affirmed the findings of the trial companyrt that marriage of the plaintiff with deceased Hanumanthappa is established and that Ex.D/3, the date of birth certificate of the plaintiff is number admissible as it is number an authentic document. In the absence of proof of date of birth, the First Appellate Court held that the trial companyrt companymitted an error in companying to the companyclusion that the plaintiff has number attained the age of marriage. The learned First Appellate Court held that Ex.P/1 is number a proof of solemnization of marriage under the provisions of the Special Marriage Act, 1954 as it is only a companytract of marriage which was registered. No marriage certificate has been issued by the companypetent authority, therefore, the parties cannot be deemed to have married under the Special Marriage Act, 1954. However, the First Appellate Court held that since the parties are Hindus and that if the marriage is neither void or voidable under the Act, therefore, the provisions of age of marriage are only directory in nature and number mandatory. The marriage was held to be valid, companysequently, the suit was decreed. The High Court in second appeal held that there was a marriage between plaintiff and Hanumanthappa and that the certificate Ex. P/1 is neither marriage certificate number issued to evidence the marriage in terms of provisions of the Special Marriage Act, 1954 but only a piece of evidence supporting the version of the plaintiff that her marriage has taken place with Hanumanthappa. The High Court said that in law, a customary Hindu marriage can be proved only on establishing that the parties to the marriage had gone through the necessary observances but since the defendants have denied the marriage itself, they cannot be permitted to turn around to companytend that it was number a valid marriage. Learned companynsel for the defendants argued that the plaintiff never asserted that she married Hanumanthappa either under the Special Marriage Act, 1954 or a marriage under custom. In fact, the plaintiff has number pleaded that she married Hanumanthappa except asserting that defendant No. 1 is her father-in-law. The defendant No. 1 Sonnappa is maternal grand-father of the plaintiff, whereas Hanumanthappa was son of defendant No. 1, meaning thereby, the claim of the plaintiff is that she married her Uncle. It is number disputed that Hanumanthappa was suffering from various diseases and died within eight months of the alleged marriage. The stand of the defendants is that there was numbermarriage and that the story of marriage was created to take the share of the deceased Hanumanthappa in the property. Before we proceed further, some relevant provisions of the Hindu Marriage Act, 1955 need to be extracted hereunder Conditions for a Hindu marriage. xx xx xx at the time of the marriage, neither party,- a is incapable of giving a valid companysent of it in companysequence of unsoundness of mind or b though capable of giving a valid companysent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or c has been subject to recurrent attacks of insanity or epilepsy xx xx xx the parties are number within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two the parties are number sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two xx xx xx Ceremonies for a Hindu marriage.- 1 A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. 2 Where such rites and ceremonies include the saptapadi that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire , the marriage becomes companyplete and binding when the seventh step is taken. xx xx xx Void marriages.- Any marriage solemnized after the companymencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it companytravenes any one of the companyditions specified in clauses i , iv and v , Section 5. One of the issues framed was whether the plaintiff is wife of Hanumanthappa. Since the entire claim of the plaintiff is based upon her marriage with Hanumanthappa, the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence is the established principle of law. This Court in Varada Bhavanarayana Rao v. State of A.P.2, held that in terms of Section 102 of the Evidence Act, 1872 3, the burden of proof in a suit or proceeding lies on that person who would fail if numberevidence at all were given on either side. It was held as under- That being the position, the question on which of the companytending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any companyrt to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if numberevidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person. We find that the High Court has companymitted illegality in holding that since the defendants have denied marriage, it cannot be asserted by the defendants that the marriage of the plaintiff with 2 AIR 1963 SC 1715 3 for short the Evidence Act Hanumanthappa was number a valid marriage. The plaintiff has led evidence to the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to be number a certificate of registration of marriage under the Special Marriage Act, 1954 and that there is numberevidence that any ceremony has taken place. In the agreement of marriage Ex.P/1 , it is only stated that both parties are of same caste and with the permission and companysent of both of their fathers, they have entered into this agreement of marriage. This type of marriage is number recognized in law as Section 7 of the Act companytemplates that the marriage can be solemnized in accordance with customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptpadi, the marriage becomes companyplete and binding when the seventh step is taken. The plaintiff has number led any evidence of solemnization of marriage as provided under sub-clause 2 of Section 7 of the Act or by leading any evidence of customary rites and ceremonies. The burden to prove marriage was on the Plaintiff alone. The defendants have denied marriage of the Plaintiff, therefore, the burden to prove marriage was on the plaintiff alone. Apart from such fact, the marriage cannot be said to be taken place in terms of Section 5 v of the Act which is to the effect that the parties are number sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two. Such marriage is a void marriage but, on a petition, preferred by either party thereto. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined is whether the alleged marriage which is between the persons of less than 21 years and 18 years and between the prohibited degree is a valid marriage. The plaintiff will be entitled to the estate of Hanumanthappa only if she proves her valid marriage. The plaintiff has number pleaded any custom permitting marriage within the prohibited degree number there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the plaintiff will number be entitled to succeed only on the basis of alleged registration of an agreement of marriage. In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the plaintiff has numberlegal right to claim the share in the property only on the basis that some of the witnesses produced by her admitted that she married Hanumanthappa. This Court in a judgment reported as Salekh Chand Dead by LRs v. Satya Gupta Ors.4 while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act, 1966, held as under In Mookka Kone v. Ammakutti Ammal AIR 1928 Mad 299 it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is number opposed to public policy and that it is ancient, invariable, companytinuous, numberorious, number expressly forbidden by the legislature and number opposed to morality or public policy. It is number disputed that even under the old Hindu Law, 4 2008 13 SCC 119 adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be companytrary to the companycept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of companytroversy whether there was such a custom, it can be said that even if there was such a custom, the same was number a valid custom. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and number by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well-established law that custom cannot be enlarged by parity of reasoning. Where the proof of a custom rests upon a limited number of instances of a companyparatively recent date, the companyrt may hold the custom proved so as to bind the parties to the suit and those claiming through and under them but the decision would number in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to companyroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the numberice of the companyrts, the companyrts, may hold that the custom was introduced into law without the necessity of proof in each individual case. Custom is a rule which in a particular family or a particular class or companymunity or in a particular district has from long use, obtained the force of law. Coming to the facts of the case PW 1 did number speak anything on the position either of a local custom or of a custom or usage by the companymunity PW 2, Murari Lal claimed to be witness of the ceremony of adoption, he was brother-in-law of Jagannath, son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the companyrt. He did number speak a word either with regard to the local custom or the custom of the companymunity. PW 3 as observed by the lower appellate companyrt was only 43 years old at the time of his deposition whereas the adoption had taken place around 60 years back. He has, of companyrse, spoken about the custom but that is number on his personal knowledge and this is only on the information given by PW 2 Murari Lal. He himself did number speak of such a custom. The evidence of the plaintiff was thus insufficient to prove the usage or custom prevalent either in the township of Hapur and around it or in the companymunity of Vaish. In the present case, the plaintiff has number proved custom of marriage to her mothers brother and or judicial precedent recognizing such marriage. In the absence of any precedent or custom of such marriage, numberjudicial numberice can be taken of a custom as argued by the learned companynsel for the plaintiff. In the absence of any pleading or proof of custom, the argument that in Vokkaliga companymunity, such marriage can be performed cannot be accepted as numberjudicial precedent was brought to the numberice of the Court that such a custom exists in the Vokkaliga companymunity number there is any instance quoted in evidence of existence of such custom.

Dalveer Bhandari, J. Leave granted. This appeal emanates from the judgment and final order dated 25.10.2005 passed by the High Court of Karnataka at Bangalore in M.F.A. No.5843/2003 WC and M.F.A. No.5844/2003 WC . Brief facts which are relevant to dispose of this appeal are recapitulated as under The claimants-respondents in M.F.A. No.5843 of 2003 are the legal representatives of one Bapusab Nadaf and the claimants-respondents in M.F.A. No.5844 of 2003 are the legal representatives of Basappa Gurappa Hipparagi, who were workmen engaged in uploading Maize foodgrain from a tractortrailer. When Maize was being unloaded from the tractor to an underground storage bin Hagevu , both the labourers climbed the grocery pit in order to clean the same for storing Maize and while cleaning they fell into the grocery pit. They shouted from inside that they were suffocating, a rope was released to them but they did number catch it and they died due to asphyxia. These facts are number disputed. The learned companynsel for the appellants submitted that the Insurance Company has clear responsibility for this accident and the Insurance Company is liable and under an obligation to pay companypensation to the appellants. This companytention is rebutted by the learned companynsel for the Insurance Company. According to him, the vehicle in question was number involved in the accident. He further submitted that there has been numberproximity or direct companynection with the death of the workmen with the vehicle in any manner. At the time of the accident the vehicle in question was number in operation. The claim petitions filed by the appellants before the Commissioner for Workmens Compensation, Bizapur, were allowed and the Commissioner vide its judgment dated 24th July, 2003, found the Insurance Company liable to pay companypensation to the appellants. Aggrieved by the said judgment, the Insurance Company preferred in M.F.A. No.5843/2003 and M.F.A. No.5844/2003 before the High Court of Karnataka at Bangalore. The High Court allowed the appeals and modified the order passed by the Commissioner and the liability of the Insurance Company was set aside. However, the appellants were at liberty to recover the amount of companypensation from the employer. According to the reasoning of the High Court, the vehicle was number involved in the accident and the death of the workmen by numberstretch of imagination can be said to have any proximate or direct companynection with the vehicle. The High Court also observed that the mere fact that Maize was brought to the spot where the workmen had died in the insured vehicle, would number render the Insurance Company liable in respect of the death, the cause of which was number proximate to the actual user of the vehicle. In the present case, the use of the vehicle was number even claimed as being a ground on which the liability is said to be fastened on the Insurance Company. Learned companynsel appearing on behalf of the appellants placed reliance on the decision of this Court in Shivaji Dayanu Patil and Anr. vs. Vatschala Uttam More, 1991 3 SCC 530. Brief facts of that case are that a companylision between a petrol tanker and a truck took place on a National Highway at about 3.00 a.m. as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the Highway. Due to overturning of the tanker, the petrol companytained in it leaked out and companylected nearby. At about 7.15 a.m. an explosion took place in the tanker causing burn injuries to those assembled near it including the respondents son who later succumbed to the injuries. The facts of this case are entirely different and are number applicable to the present case. In this case, the petrol tanker was directly involved in the accident and that all the workmen were directly companynected with the accident. This case does number help the appellants in any manner. Learned companynsel for the appellants has also placed reliance on a Division Bench judgment of the Karnataka High Court delivered on 24th February, 2006 in M.F.A. No.1870/2005 WC . In that case, the workman who was working as a loader, went in the lorry and loaded the lorry with stones and thereafter he was required to unload the same close to the Crusher near the quarry along with other loaders. At about 2.30 p.m. in the afternoon, the deceased workman got down from the lorry in order to unload the stones along with other loaders and when they opened the lock at the hind portion of the lorry, the entire load of stones in the lorry fell on him, as a result of which he sustained injuries and succumbed to the injuries on the spot. In this case, the vehicle was directly involved in the unfortunate accident. Both the above-mentioned cases relied on by the learned companynsel for the appellants are of numberavail to him. These cases do number help the appellants in any manner. Learned companynsel for the Insurance Company has placed reliance on the Explanation to Section 147 1 of the Motor Vehicles Act, 1988, which reads as under Requirements of policies and limits of liability.- 1 In order to companyply with the requirements of this Chapter, a policy of insurance must be a policy which- a is issued by a person who is an authorised insurer and b insures the person or classes of persons specified in the policy to the extent specified in sub-section 2 - against any liability which may be incurred by him in respect of of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place Provided that a policy shall number be requiredto companyer liability in respect of the death, arising out of and in the companyrse of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the companyrse of his employment other than a liability arising under the Workmens Compensation Act, 1923 8 of 1923 in respect of the death of, or bodily injury to, any such employee- a engaged in driving the vehicle, or b if it is a public service vehicle engaged as companyductor of the vehicle or in examining tickets on the vehicle, or c if it is a goods carriage, being carried in the vehicle, or to companyer any companytractual liability. Explanation For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place numberwithstanding that the person who is dead or injured or the property which is damaged was number in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

original jurisdiction writ petition civil number. 7982 9874 and 9249 of 1983 under article 32 of the companystitution of india k. garg d.k garg and a.k. goel for the petitioners. l. sanghi kapil sibal v.c. mahajan. miss meera mathur. s. sukumaran o.c. mathur d.n. mishra ashok grover c.k. mahajan l.s. goel r.n. poddar and c.v. subba rao for the respondents. the judgment of the companyrt was delivered by chinnappa reddy j. these three writ petitions art. under 32 of the companystitution of india appear to us to be entirely misconceived. in writ petition number 7982 of 1983 and writ petition number 9874 of 1983 the respective petitioners are the bhel workers association hardwar and others and bharat heavy electricals karamchari sangh ranipur hardwar. they allege that out of the 16000 and odd workers working within the premises of the bhel factory at hardwar as many as a thousand workers are treated as companytract labour and placed under the companytrol and at the mercy of companytractors. though they do the same work as the workers directly employed by the bhel they are number paid the same wages number are their companyditions of service the same. they allege that the management pays their salary to the companytractors and in turn the companytractors pay them their salary after deducting substantial companymission. the wages received by them bear no comparison with the wages paid to those directly employed by the bhel. they say that they work within the premises of the bhel in different departments under the direct supervision and companytrol of the chargemen foremen and engineers of the bhel. their working hours are as stipulated by the bhel. they work on the machines of the bhel and they are essentially part of the organisation involved ht the production process of manufacture carried on by the bhel. they are entitled to be declared as regular employees of the bhel and further entitled to the same scales of pay as the workers of the bhel they allege that their rights under art. 14 and 19 i f are infringed. it is claimed that whenever a demand is made by them they are thrown out of employment. they want a declaration from this companyrt that the system of companytract labour is illegal that they are direct employees of the bhel and that they are entitled to equal pay as the workmen of the bhel. an affidavit has been filed on behalf of the bhel by shri p.c. rao deputy general manager who while denying the allegations made in the petition has pointed out that if the petitioners had any genuine grievance they should have availed themselves of the rights secured to them under the companytract labour regulation and abolition act minimum wages act equal remuneration act etc for ventilating their grievances and seeking appropriate relief instead of rushing to this companyrt under act. 32 of the companystitution. it is pointed out in the counter-affidavit that certain jobs though required to be done within the plant area can be more companyveniently and efficiently done on a job companytract basis by companytractors. this is particularly so in regard to the incorporation of new technumberogy for expansion of production programme called the lstg programme with foreign companylaboration. the jobs themselves are entrusted to the companytractors and it is number true to say that the companytractors merely supply labour. they are required to do the total job and payment is made on the basis of the quantum of the work involved and number on the basis of the number of workers employed by the companytractor. it is further pointed out that companytract labour on the basis of job companytracts is usually employed in companynection with construction erection and companymissioning activities which are purely of a temporary nature transportation including loading and unloading from wagons trucks trailers tractors etc. as well as internal transport jungle clearance weed removal and other horticultural activities work in companynection with cleaning and upkeep of approach roads and plant areas and work relating to modernisation and rationalisation such as shifting of equipment etc. is also done on a job companytract basis. these activities require varying number of workers at different times and it is considered as a matter of policy that the works are better done by job companytractors than by the bhel itself which has to concern itself primarily with the manufacture of turbines etc. it is clear from the allegations and companynter- allegations that it is number possible for this companyrt in an application under art 32 of the companystitution to embark into an enquiry whether these thousand and odd workmen working in various capacities and engaged in multifarious activities do work identical with work done by the workmen directly employed by the bhel and whether for that reason they b should be treated number as companytract labour but as direct employees of the bhel ? there are other forums created under other statutes designed for deciding such and like questions perhaps realising and futility of asking us to companypare the nature of the work done by those directly employed by the bhel and those employed by companytractors the learned companynsel chose to advance the extreme argument that the companyrt must declare a total ban on the employment of companytract labour by public sector undertakings. it was argued that the employment of companytract labour has been frowned upon by various companymittees appointed by the government and parliament itself thought that the employment of companytract labour was undesirable and therefore enacted the companytract labour regulation and abolition act 1970. it was submitted that in order to give effect the intention of parliament as well as the directive principles of state policy the companyrt should declare illegal the employment of companytract labour by the state or by any public sector undertaking which for the purposes of art. 12 of the companystitution is the state. in other words the companynsel wants this companyrt by its writ to abolish the employment of companytract labour by the state and by all public sector undertakings. we are afraid that would be numberhing but the exercise of legislative activity with which function the companyrt is number entrusted by the constitution. it is true that for a long time the maleficent nature of the system of companytract labour and the destructive results which flow from it had been numbericed by various companymittees appointed by the government including the planning commission and that as a result of the reports and the discussions etc that took place the companytract labour regulation and abolition act 1970 was passed. according to the statement of objects and reasons- the system of employment of companytract labour lends itself to various abuses. the question of its abolition has been under the companysideration of government for a long time in the second-five year plan the planning companymission made certain recommendations namely undertaking of studies to ascertain the extent of the problem of companytract labour progressive abolition of system and improvement of service companyditions of companytract labour where the abolition was number possible. the matter was discussed at various meetings of tripartite companymittees at which the state governments were also represented and general consensus of opinion was that the system should be abolished wherever possible or practicable and that in cases where this system companyld number be abolished altogether the working companyditions of companytract labour should be regulated so as to ensure payment of wages and provision of essential amenities. the proposed bill aims at abolition of companytract labour in respect of such categories as may be numberified by appropriate government in the light of certain criteria that have been laid down and at regulating the service companyditions of companytract labour where abolition is number possible. the bill provides for the setting up of advisory boards of a tripartite character representing various interests to advise central and state governments in administering the legislation and registration of establishments and contractors. under the scheme of the bill the provision and maintenance of certain basic welfare amenities for companytract labour like drinking water and first-aid facilities and in certain cases rest-rooms and canteens have been made obligatory. provisions have also been made to guard against details in the matter of wage payment. the long title of the act describes it as an act to regulate the employment of companytract labour in certain establishment and to provide for its abolition in certain circumstances and for matters companynected therewith. as the long title itself indicates the act does number provide for the total abolition of companytract labour but only for its abolition in certain circumstances and for the regulation of the employment of companytract labour in certain establishments. section 1 4 applies to all establishments in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as companytract labour and to every companytractor who employs or has employed on any way of the preceding 12 months 20 or more workmen. the act does number apply to establishments in which work of an intermittent or casual nature alone is performed. section 2 e defines an establishment as meaning i any office or department of the government or local authority or ii any place where any industry trade business manufacture or occupation is carried on. section 2 g defines principal employer as meaning in relation to any office or department of the government or a local authority the head of that office or department or such other officer as the government or the local authority as the case may be may specify in this behalf in a factory the owner or occupier of the factory and where a person has been named as the manager of the factory under the factories act 1948 the person so named in a mine the owner or agent of the mine and where a person has been named as the manager of the mine the person so named in any other establishment any person responsible for the supervisionand companytrol of the establishment. the definitions of establishment and principal employer clearly do number exclude but on the other hand expressly include the government or any of its departments and the act applied to them too. the act is number companyfined to private employers only. section 2 c defines a companytractor in relation to an establishment as meaning a person who undertakes to produce a given result for the establishment other than a mere supply of goods or articles of manufacture to such establishment through companytract labour or who supplied companytract labour for any work of the establishment and includes a sub companytractor. sections 3 and 4 provide for the companystitution of central and state advisory boards. section 7 provides for the registration of an establishment. section 8 provides for the revocation of registration and sec. 9 provides for the effect of number-registration. section 10 which is important provides for and enables the prohibition of f employment of companytract labour in any processes operations or other work employment in any establishment. section 10 may be usefully extracted numberwithstanding anything companytained in this act the appropriate government may after companysultation with the central board or as the case may be a state board prohibit by numberification in the official gazette employment of companytract labour in any process operation or other work in any establishment. before issuing any numberification under sub- section i in relation to an establishment the appropriate government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors such as- a whether the process operation or other work is incidental to or necessary for the industry trade business manufacture or occupation that is carried on in the establishment b whether it is of perennial nature that is to say it is or sufficient duration having regard to the nature of industry trade business manufacture or occupation carried on in that establishment c whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto d whether it is sufficient to employ considerable number of whole-time workmen section 12 provides for the licensing of contractors. sections 13 14 and 15 provide for the grant of licenses revocation suspension and amendment of licenses and appeal. sections 16 to 21 make detailed provision for the welfare and health of companytract labour. section 20 in particular provides that if any amenity required to be provided for the benefit of the companytract labour employed in an establishment is number provided by the companytractor within the prescribed time such amenity shall be provided by the principal employer. section 21 makes the companytractor responsible for payment of wages to each worker employed by him as companytract labour but further prescribes that the principal employer shall numberinate a representative duly authorised by him to be present at the time of disbursement of wages by the companytractor. sections 22 to 27 provide for penalities and procedure. section 28 provides for the appointment of inspecting staff. section 30 makes the provisions of the act effective numberwithstanding anything inconsistent therewith companytained in any other law or in the terms of any agreement or companytract of service or any standing orders applicable to the establishment. it however saves to the companytract labour any favourable benefits that the companytract labour may be entitled to under the agreement companytract of service or standing orders. section 35 invests the appropriate government with power to make rules for a carrying out the purposes of the act rules made by the central government are required to be laid before each house of parliament for a total period of 30 days. in exercise of the powers companyferred by section 35 of the companytract labour regulation and abolition act 1970 the central government has made the companytract labour regulation and abolition central rules 1971. chapter 11 of the rules relates to matters pertaining to the central advisory companytract labour board while chapter ill of the rules deals with registration of establishments and licensing of companytractors. rule 25 prescribes the forms terms and companyditions of licence. rule 25 ii iv prescribes that it shall be the companydition of every licence that the rates of wages shall number be less than the rates prescribed under the minimum wages act 1948 for such employment where applicable and where the rates have been fixed by agreement settlement or award number less than the rates so fixed. rule 25 ii v a prescribes that it shall be the companydition of every licence that- v a in cases where the workmen employed by the companytractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment the wage rates holidays hours of work and other companyditions of service of the workmen of the company tractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work provided that in the case of any disagreement with regard to the type of work the same shall be decided by the chief labour companymissioner central whose decision shall be final similarly rule 25 ii v b provides that in other cases the wage rates holidays hours of work and conditions of service of the workmen of the companytractor shall be such as may be specified in this behalf by the chief labour companymissioner central . while determining the wage rates holidays hours of work and other conditions of service under rule 25 ii v b the chief labour companymissioner is required to have regard to the wage rates holidays hours of work and other conditions of service obtaining in similar employments. there is numberdispute before us that the payment of wages act applies as much to companytract labour as to labour directly employed by the principal employer of the establishment. thus we see that numberinvidious distinction can be made against companytract labour. companytract labour is entitled to the same wages holidays hours of work and companyditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. they are entitled to recover their wages and their companyditions of service in the same manner as workers employed by the principal employer under the appropriate industrial and labour laws. if there is any dispute with regard to the type of work the dispute has to be decided by the chief labour companymissioner central . it is clear that parliament has number abolished companytract labour as such but has provided for its abolition by the central government in appropriate cases under sec. 10 of the contract labour regulation and abolition act 1970. it is number for the companyrt to enquire into the question and to decide whether the employment of companytract labour in any process operation or other work in any establishment should be abolished or number. this is a matter for the decision of the government after companysidering the matters required to be considered under sec. 10 of the act. similarly the question whether the work done by companytract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the chief labour companymissioner under the proviso to rule 25 ii v a . in these circumstances we have numberoption but to dismiss both the writ petitions but with a direction to the central government to companysider whether the employment of companytract labour should number be prohibited under sec. 10. of the act in any process operation or other work of the bhel hardwar. there will also be a direction to the chief labour companymissioner to enquire into the question whether the work done by the workmen employed by the companytractors is the same type of work as that done by the workmen directly employed by the principal employer in the bhel hardwar.

KURIAN, J. Leave granted. The appellant is aggrieved by the denial of service benefits for the period between 08.10.2004, the date on which the order on companypulsory retirement was passed, and 28.11.2007, the date on which the order of companypulsory retirement was set aside and reinstating him in service. We have heard the learned companynsel appearing for the appellant as well as the learned companynsel appearing for the Corporation. The original order of companypulsory retirement imposed on the appellant on Signature Not Verified 08.10.2004 having been set aside on 28.11.2007, the Digitally signed by JAYANT KUMAR ARORA Date 2018.10.06 123503 IST Reason appellant would numbermally have been entitled to all the companysequential benefits. But the fact remains that he has number actually worked from the date of punishment imposed on him i.e.

Dr. B.S. CHAUHAN, J. These appeals arise out of the companymon judgment and order dated 5.4.2013, passed by the High Court of Calcutta, Circuit Bench at Port Blair in W.P.C.T. Nos.607-610 of 2012 partly allowing the appeals against the judgment and order dated 24.8.2012, passed by the Central Administrative Tribunal, Calcutta Circuit Bench, Port Blair hereinafter referred to as the Tribunal allowing the O.A. No.124/AN/2010 and quashing the appointment orders dated 5.2.2009 and 4.6.2009. Facts and circumstances giving rise to these appeals are That an advertisement dated 4.2.2008 was published by the respondent authorities calling for applications from eligible candidates as well as from those who were registered with the Employment Exchange for appointment to the 8 posts of Group D staff. The recruitment rules only provided for a written examination having 50 maximum marks. The written examination was held on 25.1.2009 which was given by 870 candidates out of which 573 candidates obtained 20 and above marks. A press numberice dated 27.1.2009 was issued calling the successful candidates for interview, though such interview was number part of the recruitment process. The interviews were companyducted and a final result sheet was published. In pursuance thereto, appointment letters were issued to the appellants herein. Challenging the said appointments, the unsuccessful candidates filed Original Application before the Tribunal which was allowed, quashing such appointments as equal marks were earmarked for both the written examination and interview which is impermissible in law and that the interview was never part of the recruitment process and thereby ordering initiation of fresh recruitment process. The appointees appellants challenged the said order before the High Court. The High Court upheld the reasoning of the Tribunal but modified the order to the extent of companytinuing the recruitment process from the point it stood vitiated. In pursuance of the judgment and order of the High Court, termination letters were issued to the appellants. Hence, these appeals. Shri Mahabir Singh, learned senior companynsel duly assisted by Ms. Aishwarya Bhati, learned companynsel appearing for the appellants has submitted that the employer has a right to prescribe for a higher qualification or a stringent test than prescribed under the statutory rules in order to select the best candidates and once the selection is over and the candidates appeared without any protest, they cannot be permitted to make a summer salt and challenge the selection as a whole. Thus, the judgments impugned i.e. of the Tribunal as well as of the High Court are liable to be set aside. Per companytra, Shri R. Balasubramaniam, learned companynsel appearing for the respondents has opposed the appeals companytending that it was number permissible for the employer to change the rule of the game after the selection process companymenced even if the employer is entitled for prescribing a higher qualification or a stringent test than prescribed under the rules. In the instant case as the finding of fact has been recorded by the companyrts below that there had been numbertransparency in awarding the marks in interview and the interview marks companyld number be same as that of the written test, the companyrt should number grant any indulgence in such case. Hence, the appeals are liable to be dismissed. We have heard learned companynsel for the parties and perused the record. This Court has companysidered the issue involved herein in great detail in Ramesh Kumar v. High Court of Delhi Anr., AIR 2010 SC 3714, and held as under In Shri Durgacharan Misra v. State of Orissa Ors., AIR1987 SC 2267, this Court companysidered the Orissa Judicial Service Rules which did number provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling provision for fixation of minimum marks in interview would amount to amending the Rules itself. While deciding the said case, the Court placed reliance upon its earlier judgments in B.S. Yadav Ors. v. State of Haryana Ors., AIR 1981 SC 561, P.K. Ramachandra Iyer Ors. v. Union of India Ors., AIR 1984 SC 541 and Umesh Chandra Shukla v. Union of India Ors., AIR 1985 SC 1351 wherein it had been held that there was numberinherent jurisdiction of the Selection Committee Authority to lay down such numberms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. inherent jurisdiction is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and irreversible harm. Similarly, in K. Manjusree v. State of A.P., AIR 2008 SC 1470, this Court held that selection criteria has to be adopted and declared at the time of companymencement of the recruitment process. The rules of the game cannot be changed after the game is over. The companypetent authority, if the statutory rules do number restrain, is fully companypetent to prescribe the minimum qualifying marks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is number permissible. Thus, the law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, numberprocedure is prescribed by the rules and there is numberother impediment in law, the companypetent authority while laying down the numberms for selection may prescribe for the tests and further specify the minimum benchmarks for written test as well as for viva voce. In Himani Malhotra v. High Court of Delhi, AIR 2008 SC 2103, this Court has held that it was number permissible for the employer to change the criteria of selection in the midst of selection process. See also Tamil Nadu Computer Science BEd Graduate Teachers Welfare Society 1 v. Higher Secondary School Computer Teachers Association Ors., 2009 14 SCC 517 State of Bihar Ors. v. Mithilesh Kumar, 2010 13 SCC 467 and Arunachal Pradesh Public Service Commission Anr. v. Tage Habung Ors., AIR 2013 SC 1601 . In P. Mohanan Pillai v. State of Kerala Ors., AIR 2007 SC 2840, this Court has held as under It is number well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed. The issue of the change of rule of the game has been referred to the larger Bench as is evident from the judgment in Tej Prakash Pathak Ors. v. Rajasthan High Court Ors., 2013 4 SCC 540. However, the instant case is required to be companysidered in the light of the findings of facts recorded by the Courts below- The Tribunal after appreciating the evidence on record, recorded the following findings The applicant had secured 47 marks out of 50 in the written examination. He was given only 20 marks in the interview whereas persons like Miss Zeenath Begum, Mr. Mohsin, Mr. Bishnu Biswas, Mr. Mohan Raof, Mr. Bharati Bhusan, Mr. Dilip Bepari and others got equal marks in the interview as in the written examination or more distorting results. For instance, Mr. Bishnu Biswas got 34 marks in the written examination and was given 45 marks in the interview. Similarly, Mr. Dilip Bepari got 36 marks in the written examination and got 45 marks in the interview. In case of Shri Bishnu Biswas he was number qualified as per recruitment rules since he did number possess the prescribed 8th pass certificate for the post. Directions have been sought from the Tribunal to set aside the appointment orders of the private respondents as per orders of 5.2.2009 and 4.6.2009. The High Court companysidered these issues and recorded the finding of fact that undoubtedly awarding of marks in the above manner indicated lack of transparency in the matter. The High Court has further held that distribution of marks equally both in the written test and in the interview is number permissible at all. In the instant case, there has been 50 marks for the written test as well as 50 marks for interview though the rules did number envisage holding of the interview at all. This Court in Ashok Kumar Yadav Ors. etc. etc. v. State of Haryana Ors., AIR 1987 SC 454 held that allocation of 22.2 marks for the viva voce test was excessive and unreasonably high, tending to leave room for arbitrariness. See also Munindra Kumar Ors. v. Rajiv Govil Ors., AIR 1991 SC 1607 Mohinder Sain Garg v. State of Punjab Ors., 1991 1 SCC 662 Mohanan Pillai supra and Kiran Gupta Ors. etc. etc. v. State of U.P. Ors. etc., AIR 2000 SC 3299 . In Satpal Ors. v. State of Haryana Ors., 1995 Supp 1 SCC 206, this Court disapproved allocation of 85 of total marks for interview observing that such fixation was companyducive to arbitrary selection. While deciding the said case the companyrt placed reliance upon the Constitution Bench judgment in Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors., AIR 1981 SC 487, wherein the companyrt had held that allocation of more than 15 of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as companystitutionally invalid. Thus, it is evident that the companyrts had always frowned upon prescribing higher percentage of marks for interview even when the selection has been on the basis of written test as well as on interview. The appropriate allocation of marks for interview, where selection is to be made by written test as well as by interview, would depend upon the nature of post and numberstraight-jacket formula can be laid down. Further there is a distinction while companysidering the case of employment and of admission for an academic companyrse. The companyrts have repeatedly emphasized that for the purpose of admission in an education institution, the allocation of interview marks would number be very high but for the purpose of employment, allocation of marks for interview would depend upon the nature of post. In Mehmood Alam Tariq Ors. v. State of Rajasthan Ors., AIR 1988 SC 1451, this Court had upheld fixation of 33 marks as minimum qualifying marks for viva test. In State of U.P. v. Rafiquddin Ors., AIR 1988 SC 162, this Court upheld the fixation of 35 marks as minimum qualifying marks in the viva test for selection for the recruitment to the post of a judicial magistrate. In Anzar Ahmad v. State of Bihar Ors., AIR 1994 SC 141, allocation of 50 marks for viva test and 50 marks for academic performance was upheld by this Court while companysidering the appointment of Unani Medical Officer observing that companyrt must examine as to whether allocation of such higher percentage may tend to arbitrariness. In Jasvinder Singh Ors. v. State of JK Ors., 2003 2 SCC 132, this Court upheld the allocation of 20 marks for viva test as against 80 marks for written test for selection to the post of Sub- Inspector of Police. However, the Court cautioned observing that the awarding of higher percentage of marks to those who got lower marks in written test in companyparison to some who had got higher marks in written examination, an adverse inference from certain number of such instances can be drawn. However, in absence of any allegation of mala fides against the Selection Committee or any Member thereof, a negligible few such instances, would number justify the inference that there was a companyscious effort to bring some candidates within the selection zone. In the instant case, the rules of the game had been changed after companyducting the written test and admittedly number at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50 for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency.

The Judgment of the Court was delivered by MOHAN, J.- Criminal Appeal No. 327 of 1994 is directed against the judgment and order dated 13-4-1994 of the High Court of Calcutta in CO No. 9121 W of 1993. Criminal Appeal No. 328 of 1994 is directed against the judgment and order dated 13-4-1994 of the High Court of Calcutta in CO No. 8377 W of 1993. Criminal Appeal No. 329 of 1994 is directed against the judgment and order dated 13- 4-1994 of the High Court of Calcutta in CO No. 8378 W of 1993. All these cases arise out of writ petitions filed in the High Court of Calcutta challenging the validity of sanction and taking companynizance of the cases against each of the respondents by the Designated Court under the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as TADA . A further challenge in the writ petition was also made to the vires of TADA. The orders of sanction and taking companynizance were quashed. The challenge to the Act was number gone into since the same was pending at the relevant time before this Court. To highlight the issue involved, it is enough if we advert to the facts in Criminal Appeal No. 328 of 1994 since CO No. 8377 W of 1993, against which this appeal has been preferred, is the main case. The same decision was applied to Criminal Appeals Nos. 327 and 329 of 1994. The short facts are as under. On the evening of 16-3-1993, an explosion occurred at or near Premises No. 267, B.B. Ganguly Street, Calcutta. 69 persons died, 5 of them died as a result of direct blast and 46 others were injured. The said premises and some other buildings adjoining it companylapsed and or were badly damaged. A companyplaint was lodged on 17-3-1993 regarding this incident by Mr B.K. Chattopadhaya, Sub-Inspector attached to Bowbazar Police Station. This companyplaint was treated as first information report. On that basis, Case No. 84 dated 17-3-1993 was registered in the police station under Sections 120-B/436/326/307/302 Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act. Having regard to the gravity of the offence, the Commissioner of Police, Calcutta passed an order that the case shall be investigated by a team of high-ranking police officials. In the companyrse of investigation witnesses were examined, various seizures were made and companyfessions made by two of the accused, namely, Pannalal Jaysoara and Mohammed Gulzar were recorded by a learned Metropolitan Magistrate on 7-4-1993 and 19-5-1993 respectively. During investigations it appeared that materials had transpired for prosecuting the accused under Sections 3 and 4 of TADA. On 3-5-1993, information to this effect was given to the learned Chief Metropolitan Magistrate, Calcutta. The learned Magistrate made a record of this fact and observed that the investigating officer might proceed to investigate offences under TADA. Upon companypletion of investigation, the police obtained sanction to prosecute under Sections 3 and 5 of the Explosive Substances Act from the State Government. Sanction under Section 20-A 2 of TADA from the Police Commissioner was also obtained. The charge-sheet was submitted on 14-6-1993, well within 90 days as is spoken to under Section 167 2 a i of the Code of Criminal Procedure hereinafter referred to as the Code . The sanction to prosecute under Sections 3 and 5 of the Explosive Substances Act and the sanction under Section 20- A 2 were obtained on 11-6-1993. While granting sanction under Section 20-A 2 of TADA it was mentioned that the records were placed before the sanctioning authority for examination and perusal. It appeared that for the last 5/6 years accused Pannalal Jaysoara had been manufacturing bombs in the Khaskhas room on the first floor of 267, B.B. Ganguly Street, Calcutta as and when required by accused Mohammed Rashid Khan, first respondent in Criminal Appeal No. 328 of 1994. Accused Jaysoara was introduced to other accused, namely, Mohammed Abdul Aziz, first respondent in Criminal Appeal No. 329 of 1994 and Lala alias Parwez Khan. Death of 69 persons, serious injuries to 46 persons and companyplete destruction of a two-storeyed building and partial companylapse of other two and damage to five more buildings were caused by the accused by an explosion caused by bombs and huge quantities of extremely dangerous nitro-glycerine-based explosives which experts have opined to be dangerous to life and property. The sanctioning authority mentioned inter alia that the intention of the accused was to strike terror in the people and or to strike terror in a particular section of the people and or to adversely affect the harmony amongst the Hindus and the Muslims. It was also mentioned the accused had companyspired and prepared to companymit disruptive activities. In the charge-sheet all the necessary ingredients under Sections 3 1 and 4 of TADA had been mentioned. The first respondent, Mohammed Rashid Khan moved a writ petition under Article 226 of the Constitution of India making inter alia the following prayers That the companynizance taken by learned Chief Metropolitan Magistrate, Calcutta, Respondent 7, in TADA Case No. 1 of 1993 arising out of Section H Bowbazar Police Station Case No. 84 dated 17-3-1993 and all subsequent proceedings thereto are illegal, void and inoperative in law A writ in the nature of certiorari and or an order of direction in the like nature companymanding the respondents to transmit the records relating to TADA case pending before the said respondent to this Court A writ in the nature of prohibition and or an order of direction in the like nature prohibiting the respondents and or their agents and or their subordinates from proceeding any further with the TADA case A writ in the nature of mandamus to respondents to forbear from applying the provisions of TADA against him and from taking any action or step thereunder and to release the petitioner from custody forthwith. A declaration was also prayed for that TADA is violative of the Constitution and is liable to be struck down. But the High Court by its impugned judgment held that TADA has been wrongly applied in the case and the orders of sanction and further taking companynizance by the Designated Court on 14- 6-1993 was number proper, legal and valid and the same was quashed and set aside. Aggrieved by the impugned judgment, the State of West Bengal has preferred these criminal appeals. Mr K.T.S. Tulsi, learned Additional Solicitor General in attacking the judgment argues as under. The High Court gravely erred in quashing the order, taking companynizance, by entering the area which is beyond the scope of jurisdiction under Article 226 of the Constitution of India. The jurisdiction is companyfined to cases where the allegations before the Designated Court ex facie cannot companystitute an offence under TADA. The High Court cannot examine the merits of the allegations. In fact, what has been done by the High Court is a laboured exercise of scrutinising the material placed before the Designated Court. In doing so, it entered into a debatable area and began the process of appreciation of evidence admissibility of companyfession or prejudgment on trial or determine the guilt or innocence of the accused. It has made an analysis of the materials to determine the truth or otherwise of the allegations. It has companyducted a virtual pre-trial at a premature stage. On that basis, it had companye to a companyclusion that there is numberevidence in support of these allegations. The law is, the High Court must assume each of the allegations made in the charge-sheet to be factually companyrect and examine the ingredients of the offence without adding or subtracting anything therefrom. In support of this submission, learned companynsel relies on State of Maharashtra v. Abdul Hamid Haji Mohammed1 wherein this Court has held, the High Court under Article 226 has numberjurisdiction to enter into a debatable area whether the direct accusation made in companyjunction with the attendant circumstances, if proved to be true, is likely to result in companyviction for an offence under TADA. The moment there is a debatable area, in the case, it is number amenable to the writ jurisdiction. In State of Haryana v. Bhajan Lal2 it has been categorically laid down that the allegations made in the FIR or the companyplaint taken on their face value and accepted in its entirety companystitute an offence. The High Court 1 1994 2 SCC 664 1994 SCC Cri 595 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 is number justified in quashing the criminal proceedings. In State of Bihar v. P.P. Sharma3 this Court had ruled that writ petition should number be entertained against charge-sheet while exercising jurisdiction. If the matter is companysidered on merits in the guise of prima facie evidence, it would amount to a pre-trial. To the same effect are the following rulings State of Maharashtra v. Abdul Hamid1 SCC pp. 669-70, para 7 . State of Haryana v. Bhajan Lal2. State of Bihar v. PP Sharma3 SCC p. 269, para 68 . Maninder Kaur v. Rajinder Singh4. Radhey Shyam Khemka v. State of Bihar5. State of Bihar v. Murad Ali Khan6 SCC p. 662 . The next submission is, under Article 226 the High Court is number entitled to go into the validity or otherwise of the order granting sanction for prosecution. The order of sanction is required to be proved by evidence in the companyrse of trial. All objections with regard to validity or otherwise companyld be raised there since witnesses are summoned to prove the order and they being subject to crossexamination. In this case, the order of sanction, on the face of it, shows that the sanctioning authority had gone through all the reports, the recorded statements of witnesses, companyfessions and seizure list and the opinion of experts. The High Court has to accept these averments on their face value. The companyrectness or otherwise of the statement is only subject to proof during a trial. Therefore, the High Court is wrong in holding, there was number-application of mind. In the case of PP Sharma3 it has been held, if all the facts of the case are number mentioned in the sanction order the same does number become invalid as the prosecution can prove these facts in the companyrse of trial. The finding of the High Court that the affidavit of Mr Sujit Kumar Sanyal is number proper because he was neither an investigating officer number an informant is companytrary to record. It was brought to the numberice of the High Court through the affidavit of the Commissioner of Police that the Special Investigation Team had been set up on 18-3-1993 which was headed by Mr Sujit Kumar Sanyal. Unfortunately, the affidavit of Commissioner of Police was number taken into account. Therefore, the companytrary findings are wrong. The High Court wrongly excluded from companysideration the effect of companyfession of the two accused for the reasons that the companyfession companyld number have been companysidered by the Designated Court as the same remained in sealed companyer. In this regard, it is submitted that charge-sheet specifically refers to the companyfession recorded by the Magistrate under Section 164 of the Code. 3 1992 Supp 1 SCC 222 1992 SCC Cri 192 1 1994 2 SCC 664 1994 SCC Cri 595 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 4 1992 Supp 2 SCC 25 1992 SCC Cri 522 5 1993 3 SCC 54 1993 SCC Cri 591 6 1988 4 SCC 655 1989 SCC Cri 27 The High Court has held in the impugned judgment that from the act of preparation and storage of bombs intention to companymit offences under TADA cannot be inferred as the motive was to defend the Muslims. This finding is shocking and is companytrary to the well-established principles of selfdefence. Then again, the preparation and keeping of bombs are illegal. It tantamounts to terrorising the people. Therefore, this would be a terrorist act under Section 3 1 . If the Act itself is illegal it cannot be justified on the plea of self-defence. The question is whether a right of private defence exists under Indian Penal Code or any other law. Further, Section 3 3 is also attracted. This Court in Yogendra Morarji v. State of Gujarat7 SCC p. 234, para 30 has dealt with the right of self-defence. The right of self-defence companymences number before a reasonable apprehension arises in the mind of the accused. The finding of the High Court that there are numbermaterials in support of allegation of companyspiracy under Section. 3 3 proceeds on misappreciation of the material and is companytrary to the averments companytained in the chargesheet. It is number necessary to bring home the charge of companyspiracy to establish the time and the place of companyspiracy or even the actual words of companymunication. It is number necessary to prove who entered into companyspiracy and the nature of companyspiracy. The existence of companyspiracy can be inferred from the companyduct of the various accused prior to and subsequent to the companyspiracy. Existence of explosive materials is enough to prove the companyspiracy when there was preparation for a large number of bombs. In support of this submission, reliance is placed on Ajay Aggarwal v. Union of India8, dealing with the law relating to companyspiracy. On the basis of this citation it is submitted, even if the explosion has number taken place, the very possession of bomb would amount to companyspiracy. Then again, the High Court has clearly gone wrong in holding that there must be a breakdown of law-enforcing machinery. That would be a companydition precedent for prosecuting the accused for offences under TADA. This finding is companytrary to the decision of this Court in Kartar Singh v. State of Punjab9. In that ruling the legislative intention to bring TADA has been clearly spelt out. In para 145 at p. 653, of the ruling what has been observed is that the ordinary procedural law was found to be inadequate by the Legislature and, therefore, the object of Legislature in bringing in TADA may number be defeated or nullified. The interpretation of the High Court, if adopted, would clearly make the TADA unworkable. Sections 3 and 4 of TADA are intended for the whole of India. It has numberhing to do with the breakdown of law-enforcing machinery. The High Court had gone on a totally incorrect premise when it quashed the order taking companynizance on the ground that it is number a reasoned 7 1980 2 SCC 218 1980 SCC Cri 394 8 1993 3 SCC 609, 617 1993 SCC Cri 961 9 1994 3 SCC 569 1994 SCC Cri 899 JT 1994 2 SC 423 order. It is submitted that numberreasons need be stated. Therefore, this approach of the High Court is clearly companytrary to the following rulings of this Court Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia10 SCC p. 721, para 14 . R.S. Nayak v. A.R. Antulay11 SCC pp. 755-56, para 43 . State of Bihar v. Ramesh Singh12 SCC p. 39, para 4 . Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya13 SCC p. 85, para 7 . Equally, the High Court erred in holding that the Court taking companynizance can only look at the police report and numberhing else. This is clearly companytrary to the ruling of this Court in Satya Narain Musadi v. State Of Bihar14 SCC pp. 157-58, paras 9 and 10 . The report under Section 173 2 is accompanied by all the documents and statements. All of them can be looked into. In support of the above submissions, it is urged that the judgment of the High Court is perverse and is liable to be set aside. Mr U.R. Lalit, learned Senior Counsel appearing for the appellants submits that a charge-sheet in criminal law is a mere narration. It is a manifestation of evidence companylected. No charge-sheet is ever companystrued in a restricted way, as has been done by the High Court. In this case the High Court has grievously erred. When a police report is filed companynizance is almost automatic. In fact, in A.C. Aggarwal, Sub-Divisional Magistrate v. Ram Kali15 this Court held that when Section 190 1 b of the Code uses the words may take companynizance it means, must take companynizance and that it has numberdiscretion in the matter. In law, numberreasons need be given for taking companynizance under Section 193. Mr Ram Jethmalani, learned Senior Counsel, appearing on behalf of the respondents submits that a report of the police companystitutes the facts found as a result of investigation. Under Section 173 of the Code the Court is called upon to take action. The report in the accompanying documents -though companyplementary must be held distinctive. In law, the report should companytain the minimum. Should the report fail to bring out the ingredients of an offence the same cannot be supplemented by other materials. Thus, the submission is, the report is relevant for the issue of process. The impugned order is in two parts- 1. taking companynizance and 2. issuing a process. 10 1989 1 SCC 715, para 14 1989 SCC Cri 285 11 1986 2 SCC 716, para 43 1986 SCC Cri 256 12 1977 4 SCC 39, para 4 1977 SCC Cri 533 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 14 1980 3 SCC 152, paras 9 10 1980 SCC Cri 660 15AIR 1968 SC 1, 5 1968 1 SCR 205 1968 Cri LJ 82 The theory of curable irregularity cannot be applied except in revisional or appellate stage. Section 170 5 makes a clear distinction between the report and documents along with the report. Section 190 1 b states Such facts companystitute an offence. Section 190 of the Code is companytrolled by Section 20-A 1 and 2 of TADA. Under such circumstances, the Court will have to examine whether the bar has been removed. In support of this submission, reliance is placed on Gokulchand Dwarkadas Morarka v. King16. Though that case arose under Defence of India Rules, the ratio squarely applies. A companynizance which is barred cannot be overcome by a sanction. The companyrt must look at the validity of sanction. In this case, the sanction was never produced before the Court. On the companytrary, the Court took companynizance automatically. The specific case of these respondents before the High Court was, there was numbersuch sanction. The burden that the sanction was granted in relation to the facts companystituting the offence has,-not been discharged. While taking companynizance perusal of sanction is number mentioned. This order is companyclusive. The Commissioner of Police in his affidavit does number say that he handedit over to the Designated Court and that the Court returned to the Police as there was numberinfrastructure for safe custody. On the basis of the affidavit it is submitted that numbersanction was made. In criminal justice the quantum of evidence at the time of issuing the process must be the same as at the time of taking companynizance. Relying on Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar17 it is urged that under Section 202 of the Code a plea of self-defence companyld be raised and the decision invited at the time of issuing process. As regards the exercise of inherent jurisdiction in quashing under section 482 of the Code it companyld be exercised in three cases When there is a legal bar to prosecution. The FIR and the companyplaint do number make out the offence. When there is numberlegal evidence. The High Court can interfere during investigation number under the inherent powers but under the Constitution of India after companynizance before charges are framed. This can be done both under the inherent powers and Article 226 of the companystitution of India a on account of the existence of legal bar or where there is numbermaterial for issuing process or action b there is number enough numberlegal evidence c after charges are framed when there is legal evidence to sustain the charges. 16 AIR 1948 PC 82, 83 52 CWN 325 49 Cri LJ 261 17 AIR 1960 SC 11 13 1960 Cri LJ 1499 It is incorrect to companytend that the High Court has appreciated the evidence. In order to determine whether the bar has been removed, it can examine the same. As a matter of fact, this Court in State of Maharashtra v. Abdul Hamid Haji Mohammed1 SCC at p. 669 has held that mens rea is necessary in deciding the abetment. Therefore, primarily the Court has to decide whether an order of sanction exists or number. The sanction in this case is void for the following reasons The order of sanction states that the Commissioner of Police accords sanction for prosecution. Legally speaking, it should be for proceeding under TADA and number for prosecution. It has been so laid down in Ram Kumar v. State of Haryana Is. There is number-application of mind. In Gokulchand Dwarkadas Morarka16 it is held that there must be application of mind which ratio has been accepted by this Court in Major Som Nath v. Union of India 19. Sections 3 and 4 of TADA companytemplate various kinds of offences. Section 3 1 speaks of different types of offences. Therefore, there must be application of mind as to what offences are alleged. The sanction order says and or. This is bad in law. It has been so laid down in Major Som Nathl9. The sanctioning authority must companyform to the same standard as the companyrt and decide companyspiracy against each accused. The leading case on this aspect is Alvin Krulewitch v. United States20. Relying on this ruling it is submitted the Court must insist on an admissible evidence against each accused. To the same effect is Walli Mohammad King21. If the bombs are intended for self-defence there is numbermens rea. Consequently, there is numberoffence under TADA. Support is derived for this proposition from Niranjan Singh Karam Singh v. Jitendra Bhimraj Bijjaya 1 SCC at pages 87- 88 . Where preparations are made to meet a companymunal frenzy, the respondents cannot be prosecuted under TADA. Upholding the validity of the TADA this Court in Kartar Singh v. State of Punjab9 held that the Act falls under Entry I of List I, i.e., Defence of India. That being so, the offences under Sections 3 and 4 must relate to sovereignty and integrity of India. In Hitendra Vishnu Thakur22 this Court in dealing with the definition of terrorism held Unless the Act companyplained or falls strictly within the letter and spirit of Section 3 1 of TADA and is companymitted with the intention as envisaged by that section the accused cannot 1 1994 2 SCC 664 1994 SCC Cri 595 18 1987 1 SCC 476, 478 1987 SCC Cri 190 16AIR 1948 PC 82, 83 52 CWN 325 49 Cri LJ 261 19 1971 2 SCC 387 1971 SCC Cri 559 AIR 1971 SC 1910 20 93 L Ed 790, 795 336 US 440 1948 21 AIR 1949 PC 103, 104 50 Cri LJ 340 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 9 1994 3 SCC 569 1994 SCC Cri 899 JT 1994 2 SC 423 22 Hitendra Vishnu Thakur v. State of Maharashtra, 1994 4 SCC 602 1994 SCC Cri 1087 be tried and companyvicted. Hence, it is submitted the order of sanction must be examined in this light. The Designated Court must record the motive as postulated under Section 3 1 . If, therefore, the dominant intention is selfdefence, the matter will have to be viewed only from that angle. In Sanjay Dutt v. State through CBI23 this Court held that the accused companyld prove in relation to offences which do number require mens rea, an innocent possession will number bring the offence under Section 5. Therefore, it is submitted in cases where mens rea is required like Sections 3 and 4, it must relate to sovereignty and integrity of India. Hence, the Court will have to determine the dominant intention as laid down in Mathuri v. State of Punjab24. In this case, the dominant intention is self-defence. Therefore, it will number companystitute an offence under TADA. In the hargesheet police report, the ingredients of neither Sections 3 number 4 are mentioned. The documents, if taken into companysideration, refer to two companyfessions. They would only point to selfdefence. Mr Dipankar Ghosh, learned Senior Counsel, appearing on behalf of Rashid Khan, first respondent, in Criminal Appeal No. 328 of 1994, adopting the argument of Mr Ram Jethmalani would urge that there is numbervalid sanction under Section 3 1 in this case. It is the duty of the sanctioning authority to apply its mind. In Indu Bhusan Chatterjee v. State25 it has been so laid down. The order according sanction must give reasons. The necessity for giving reasons has been laid down in Uma Charan v. State of M.p26 and again in Siemens Engg. Mfg. Co. of India Ltd. v. Union of India27. With regard to motive and intention, the learned companynsel cites Blacks Law Dictionary. Therefore, in this case, the intention was number to terrorise. On the companytrary, it is only by way of selfdefence. Therefore, numberexception companyld be taken to the impugned judgment. Having regard to the arguments the following points arise for our determination The scope of the jurisdiction of the High Court under Article 226 to interfere with a according sanction and b taking companynizance. Whether the order of sanction is bad in law for a number-application of mind b that it does number give reasons c that there is numbermention that there is a breakdown of law enforcement machinery 23 1994 5 SCC 410 1994 SCC Cri 1433 1994 3 Scale 1004 24 1964 5 SCR 916 AIR 1964 SC 986 1964 2 Cri LJ 57 25 AIR 1955 Cal 430 26 1981 4 SCC 102, 105 1981 SCC LS 582 1982 1 SCR 353, 358 27 1976 2 SCC 981, 986 AIR 1976 SC 1785, 1789 d it does number speak of companyspiracy. Section 20-A of TADA with regard to taking companynizance of offence postulates under sub-section 2 , that numbercourt can take companynizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police. Such a provision relating to sanction is number new under criminal jurisprudence. Section 132 of the Code provides for sanction. This section is a bar to the prosecution of police officers under Sections 129, 130 or 131. The object is to protect responsible public servants against the institution of possible vexatious and mala fide criminal proceedings for offences alleged to be companymitted by them while they are acting or purported to act as such in the discharge of their official duty. Section 197 companytains a similar sanction. The object of the section is to provide for two things, namely, 1 to protect government servants against institution of vexatious proceedings, and 2 to secure the well-considered opinion of a superior authority before a prosecution is lodged against them. Similar provisions are found in other enactments, for example, Prevention of Corruption Act, 1947. Similarly, when Section 20-A 2 of TADA makes sanction necessary for taking companynizance - it is only to prevent abuse of power by authorities companycerned. It requires to be numbered that this provision of Section 20-A came to be inserted by Act 43 of 1993. Then, the question is as to the meaning of taking companynizance. Section 190 of the Code talks of companynizance of offences by Magistrates. This expression has number been defined in the Code. In its broad and literal sense, it means taking numberice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word companynizance indicates the point when a Magistrate or a Judge first takes judicial numberice of an offence. It is entirely a different thing from initiation of proceedings rather it is the companydition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and number of persons. Cognizance is defined in Whartons Law Lexicon 14th Edn., at page 209. It reads Cognizance Judicial , knowledge upon which a judge is bound to act without having it proved in evidence as the public statutes of the realm, the ancient history of the realm, the order and companyrse of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the several seals of the King, the Supreme Court and its jurisdiction, and many other things. A judge is number bound to take companynizance of current events, however numberorious, number of the law of other companyntries. It has, thus, reference to the hearing and determination of the case in companynection with an offence. By the impugned judgment the High Court has quashed the orders of sanction and the Designated Court taking companynizance in the matter. Before we go into the merits it is desirable to determine the limitations of power of the High Court under Article 226 in this regard. In the State of Maharashtra v. Abdul Hamid Haji Mohammed1 after holding that the High Court in writ petition under Article 226 can interfere only in extreme cases where charges ex facie do number companystitute offence under TADA it was held in paragraph 7 at pages 669-70 as under The first question is Whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the companyrectness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act? Shri Jethmalani companytended, placing reliance on the decisions in R.P Kapur State of Punjab28 and State of Haryana v. Bhajan Lal2 that in the facts of this case, the High Court had such a jurisdiction since there is numberaccusation against the respondent in the charge-sheet filed in the Designated Court which, if believed, must result in his companyviction for an offence punishable under TADA Act. We are number impressed by this argument of Shri Jethmalani. It is numberdoubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot companystitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is number under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is number exercisable in cases like the present where it may be debatable whether the direct accusation made in companyjunction with the attendant circumstances, if proved to be true, is likely to result in companyviction for an offence under TADA Act. The moment there is a debatable area in the case, it is number amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely, raising the objection before the Designated Court and, if necessary, challenging the order of the Designated Court by appeal in the Supreme Court as provided in Section 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order, number being an interlocutory order of a Designated Court, there is numberoccasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. 1 1994 2 SCC 664 1994 SCC Cri 595 28 1960 3 SCR 388 AIR 1960 SC 866 1960 Cri LJ 1239 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 We have numberdoubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material companytaining the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was number available. The ratio of the decisions of this Court in P Kapur28 and Bhajan Lal2 on which reliance is placed by Shri Jethmalani, has numberapplication to the facts of the present case. There was thus numberjustification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the companytroversy much less for quashing the prosecution of Respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act. emphasis supplied From the above quotation it is clear if there is a debatable area it is number amenable to writ jurisdiction under Article 226 of the Constitution of India and the gamut of the procedure prescribed under TADA must be followed including challenging the order of the Designated Court under Section It is also clear that the High Court cannot perform a laboured exercise of scrutinising the materials. In State of Haryana v. Bhajan Lal2 where a writ petition was filed to quash the first information report and also of the writ of prohibition restraining the police authority from proceeding further into the investigation, the High Court companycluded that the allegations do number companystitute a companynizable offence. It further held that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and, that too, in the rarest of rare cases that the Court will number be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or the companyplaint. It was further held that where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in the entirety, do number prima facie companystitute any offence or make out a case against the accused, then alone the proceeding companyld be quashed. In State of Bihar v. PP Sharma3 at SCC pages 224-225, headnote it is held At a stage when the police report under Section 173 CrPC has been forwarded to the Magistrate after companypletion of the investigation and the material companylected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself number to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the High Court fell into grave error in appreciating the documents and affidavits produced before it by treating them as 28 1960 3 SCR 388 AIR 1960 SC 866 1960 Cri LJ 1239 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 3 1992 Supp 1 SCC 222 1992 SCC Cri 192 evidence, delving into the disputed questions of fact in its jurisdiction under Articles 226/227 and pronouncing the respondents to be innocent and quashing the criminal proceedings by companyverting itself into a trial companyrt. This was number at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation of evidence is the function of the criminal companyrts the Special Judge was seized of the matter. He had heard the arguments on the question of companynizance and had reserved the orders. The High Court did number even permit the Special Judge to pronounce the orders. The High Court, under the circumstances, companyld number have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Entertaining the writ petitions against charge-sheet and companysidering the matter on merit on the guise of prima facie evidence to stand an accused for trial amounts to pretrial of a criminal trial under Article 226 or 227 even before the companypetent Magistrate or the Sessions Court takes companynizance of the offence. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take companynizance by the companypetent companyrt. It is number the case that numberoffence had been made out in ,the chargesheets and the first information report. Grossest error of law has been companymitted by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. In Maninder Kaur v. Rajinder Singh4 at SCC page 26, para 4 this Court observed thus The matter is plain and simple as on the statement of companyplainant and her two witnesses, the learned Magistrate came to the opinion that there was sufficient ground for proceeding in the companyplaint and he issued process against the accused-respondents. Now at that stage to judge the sufficiency or otherwise of the ground for proceeding was beyond the power of the High Court so as to quash the proceedings under Section 482, CrPC. The value to be attached to the statement made by the appellant under Section 164, CrPC was to be examined at the enquiry at the precharge stage and possibly at the trial, if charge was to be framed. In Radhey Shyam Khemka v. State of Bihar5 at SCC pp. 59- 60, para 8 it was held thus The companyplaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did number intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that charge-sheet companynizance has been taken. In such a situation the quashing of the prosecution pending 4 1992 Supp 2 SCC 25 1992 SCC Cri 5 1993 3 SCC 54 1993 SCC Cri 591 against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial companyrt to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had companye to companyclusion that numberoffence under the Penal Code was disclosed the matter would have been different. This Court has repeatedly pointed out that the High Court should number, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial companyrt. The power under Section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the companyrt. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents companylected during investigation or inquiry, for purpose of expressing an opinion whether the accused companycerned is likely to be punished if the trial is allowed to proceed. In State of Bihar v. Murad Ali Khan6 at SCC pages 662- 663, para 15 this Court held It is trite that jurisdiction under Section 482 CrPC, which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should number embark upon an enquiry whether the allegations in the companyplaint are likely to be established by evidence or number. That is the function of the trial Magistrate when the evidence companyes before him. Though it is neither possible number advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking companynizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the companyplaint or the charge-sheet, do number in law companystitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the companyrt or number. emphasis supplied In Municipal Corpn. of Delhi v. Ram Kishan Rohtagi29 at SCC p. 6, para 10 it is reiterated 6 1988 4 SCC 655 1989 SCC Cri 27 29 1983 1 SCC 1 1983 SCC Cri 115 It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the companyplaint or the papers accompanying the same, numberoffence is companystituted. In other words, the test is that taking the allegations and the companyplaint as they are, without adding or subtracting anything, if numberoffence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. emphasis supplied In Municipal Corpn. of Delhi v. Purshotam Dass Jhunjunwala30 at SCC p. 10, para 5 it was further made clear As to what would be the evidence against the respondents is number a matter to be companysidered at this stage and would have to be proved at the trial. We have already held that for the purpose of quashing the proceedings only the allegations set forth in the companyplaint have to be seen and numberhing further. In this legal background we will analyse the facts as companytained in the charge-sheet Accused Mohd. Rashid Khan and his relatives reside at 43, B.B. Ganguly Street, Calcutta-12. He used to maintain a group of antisocials. Local people were scared of him and his men. No one dared to object or raise voice against them as all knew the companysequences. The said Mohd. Rashid Khan had his office in Premises No. 266, B.B. Ganguly Street. Accused Rashid Khan, a Satta Bookie, used to run his satta business inside Satta Gali at Premises Nos. 266 and 267, B. Ganguly Street. The investigation revealed that since last 5/6 years Accused 3 Pannalal Jaysoara had been manufacturing bombs on the first floor of 267, B.B. Ganguly Street as and when required by Accused 1 Md. Rashid Khan, the Satta Bookie. Kalloo Sarafaraz Khan, a henchman of Accused 1 picked up Accused 3 Pannalal Jaysoara first for preparing bombs for their group and through accused Kalloo Sarafaraz Khan, Accused 3 Pannalal Jaysoara was introduced to Accused 1 Md. Rashid Khan, Accused 2 Abdul Aziz, Accused 7 Lala Parwez Khan, accused Zakrin and Accused 8 Parvez Imtiaz Khan. It also transpired that accused Pannalal used to take cash Rs 100 regularly every week either from accused Rashid Khan or from accused Kalloo Sarafaraz Khan. Accused 3 Pannalal used to receive the said money from the office of accused Rashid Khan at 266, B.B. Ganguly Street. This bomb-manufacturing matter was supervised mainly by accused Kalloo and accused Lala absconding and sometimes by accused Imtiaz Khan absconding . Accused Md. Rashid Khan, Abdul Aziz and Zakrin Khan used to visit the first floor of 267, B.B. Ganguly Street, also for the same purpose. 30 1983 1 SCC 9 1983 SCC Cri 123 After the companymunal riot in recent past between Hindus and Muslims in Bombay, Accused 1 Md. Rashid Khan became very worried for the Muslims because, according to him, a large number of Muslims died at Bombay and the local Government did numberhing for their companymunity and he apprehended that such sort of companymunal riot might take place in Calcutta and Government may number stand by the side of Muslims as in Bombay as a result many Muslims would die. As such accused Md. Rashid Khan hatched a companyspiracy with his henchmen viz. accused Kalloo, Lala, Zakrin, Khalid, Murtaza, Aziz, Gulzar etc. to procure huge quantity of explosive materials for preparing large number of bombs with a view to kill the Hindus in Calcutta by using those bombs through Muslim brothers. emphasis supplied Pursuant to that companyspiracy Accused 5 was entrusted with the task of procuring explosive materials. For this, Accused 1, Rashid Khan, paid money to Accused 5 Md. Khalid through accused Kalloo. Within a few days, Accused 5 Khalid, with the help of accused Hassu procured huge quantities of explosive materials and brought those to the first floor of 267, B.B. Ganguly Street, in two drums and two bags and kept the same there with the help of accused Murtaza, Gulzar, Tenia and Ukil. Again on 16-3-1993 accused Md. Khalid and accused Hassu brought explosive materials in two bags and with accused Gulzar and Mustafa Murtaza came near the Satta Gali at about 20/20.30 hrs. There with the help of accused Tenia, Ukil and Khurshid brought those bags inside the Khaskhas Godown on first floor of 267, B.B. Ganguly Street through Satta Gali. At that time there were some other persons present in Satta Gali who saw this. Thereafter accused Murtaza, Khalid and Hassu and Khurshid kept two drums and four bags together and placed a plastic sheet. Accused Khalid and Hassu opened those bags and brought out explosive materials and some small tin companytainers. Then accused Tenia, Ukil, Hassu and Khurshid started mixing the explosive materials while accused Gulzar, Khalid and Murtaza started straining the materials. Accused Gulzar tried to open the lid of a drum but he was asked by accused Khalid and accused Murtaza number to do so. As such he did number open the lid of the drum. Soon after accused Nisar Gulzar, Khalid and Murtaza were straining those explosive materials. Accused Lala, Kalloo and Imtiaz came inside the first floor of 267, B.B. Ganguly Street and supervised this manufacturing process. Owner of Khaskhas Godown, E.M. Naushad and his men were present inside the first floor of the said building i.e. inside his godown-cum-residential place at that time. At about 21.00/21.30 hours of that night, an electrician of that locality who used to sleep in the night inside the Khaskhas Godown regularly also came there but being rebuked by accused Murtaza he left the Khaskhas Godown. Some other people who used to stay during night were also present inside the Khaskhas Godown on that night. Thereafter at intervals accused Gulzar and accused Khalid left that house for their destinations. All the street lights and lights inside Satta Gali and lights on the first floor of 267, B.B. Ganguly Street and its surrounding areas were burning. A few persons were present inside Satta Gali then. On the same morning, i.e., 16-3-1993, accused Kalloo with accused Imtiaz went to the place of accused Pannalal Jaysoara and asked him to companye to their place at Bowbazar Street for preparing bombs. At about 22.00/22.30 hours, on that day, accused Pannalal came to the office of accused Md. Rashid Khan at 266, B.B. Ganguly Street. There he met accused Aziz, Rashid, Lala and Zakrin who took him to the Khaskhas Godown-cum-Factory located on the first floor of 267, B.B. Ganguly Street through Satta Gali where accused Murtaza, Tenia, Nisar, Ukil, Hassu and Khurshid were found preparing bombs and there was huge quantity of the mixture of explosive materials over a plastic sheet on the first floor of 267, B.B. Ganguly Street besides a number of empty small tin companytainers. At about 23.00/23.30 hours on 16-3-1993, accused Pannalal, after preparing a few bombs came down and went out, being followed by a witness. Accused Zakrin was found standing near the Satta Gali and accused Md. Rashid Khan was then talking with two persons of Haberly Lane, standing on the pavement in front of 266, B.B. Ganguly Street. At that time, accused Pannalal went to accused Rashid Khan and told him that it would take long time, even up to the next day evening, to prepare bombs - with all such huge quantity of explosive materials and asked accused Rashid Khan as to the necessity of preparing such large number of bombs. Accused Rashid Khan answered him in presence of those two persons as to why large number of bombs were necessary referring to recent past Bombay Riot. Then Accused 1 Mohammed Rashid Khan asked Accused 3, Pannalal, to start the work of preparation of bombs and thereafter went towards his hotel Shahi Darbar. After departure of accused Rashid Khan, Accused 3 Pannalal also left that place for his residence. At about 23.59 hours on 16-3-1993 the explosion took place resulting in death of 69 persons and 46 persons injured. Due to this explosion the houses either companylapsed or got damaged. The facts also disclose that companyfessions were made by Accused 3, Pannalal and Accused 6, Md. Gulzar under Section 164 of the Code before the Magistrate. Now, we companye to the order granting sanction. The order of sanction by the Commissioner of Police is dated 11-6- 1993. It inter alia says WHEREAS, it appears from all the reports, recorded statements of witnesses, companyfessional statement of accused persons viz. Pannalal Jaysoara and Md. Gulzar, the seizure lists, opinion of experts, Order No. 4509-P dated 11- 6-1993 from the Joint Secretary to the Government of West Bengal case diary etc. in companynection with Bowbazar PS. C No. 84 dated 17-3-1993 under Sections 120-B/436130213071- 326 IPC, under Sections 3 and 5 of Explosive Substances Act, under Section 3 and TADA Act, placed before me, that on 16-3-1993 at about 23.59 hours there was an explosion due to blast of bombs and explosive materials which caused destruction of Premises No. 267, B.B. Ganguly Street, Calcutta-12 and damage to Premises Nos. 266, 268-A, 43/3, 42/1, B.B. Ganguly Street, 1, Haberly Lane, 37, Robert Street, Calcutta-12 etc. and death of 69 persons and injuries to large number of people. emphasis supplied Thereafter, it proceeds to say that the accused with intent to strike terror in the people and or to strike terror in a particular section of the people and or to alienate a particular section of people, to adversely affect the harmony amongst the Hindus and Muslims were engaged in preparing and or causing to be prepared, bombs, with explosive substances and highly explosive materials by procuring them, which acts were likely to cause death or injuries to persons and loss of or damage to and or destruction of properties and thereby companymitted terrorist acts, emphasis supplied AND WHEREAS it appears, from the aforesaid records and documents, that the aforesaid persons companyspired and were preparing to companymit disruptive activities. AND WHEREAS, it appears after due companysideration of all the records, documents etc. mentioned earlier, that the aforesaid persons by their acts have companymitted offences punishable under Sections 3 and 4 of the Terrorist and Disruptive Activities Prevention Act, 1993. emphasis supplied Now, therefore, on careful companysideration of all the facts, materials and circumstances of the case and in exercise of the powers companyferred upon me by Section 20-A 2 of the Terrorist and Disruptive Activities Prevention Act, 1993, I, Shri Tushar Kanti Talukdar, Commissioner of Police, Calcutta, do hereby accord sanction for prosecution under Sections 3 and 4 of the Terrorist and Disruptive Activities Prevention Act, 1993 of the following persons, viz., 1 Md. Rashid Khan, son of late Ramzan Khan, of 43, B. Ganguly Street, Calcutta- 1 2. On this, the Designated Court passed the following order on 14-6-1963 Received charge-sheet against the accused 1 Md. Rashid Khan, 2 Abdul Aziz C.K., 3 Pannalal Jaysoara, 4 Md. Mustafa Murtaza Murtaja, 5 Md. Khalid, 6 Md. Gulzar, Md. Parvez Khan Parwez Lala and 8 Imtiaz Khan under Sections 120- B/436/302/307/326 IPC, under Sections 3 and 5, S. Act and under Sections 3 and 4, TADA Act. PP Shri Sisir Ghosh prays for taking companynizance. Heard. Perused the police papers. Cognizance taken. Accused 7 and 8 are reportedly absconding. emphasis supplied Issue warrant of arrest against accused Parvez Khan Md. Parvez Khan Parwez Lala and accused Imtiaz Khan. Fix 10-7-1993 for E.R. to date. The High Court in the impugned judgment criticises the order of sanction. It inter alia holds It has been specifically alleged that numbersanction order was given by the Commissioner of Police - Respondent 3 before the Designated Court took companynizance on 14-6-1993. Respondent 3 has number affirmed an affidavit denying the said allegations made by the petitioner. The said affidavit affirmed by K. Sanyal also does number disclose that he was authorised to affirm the affidavit on behalf of the Commissioner of Police - Respondent 3. There is, therefore, numberspecific denial by the Commissioner of Police of the averment in the writ petition that numbersanction had been granted by him prior to the Designated Court taking companynizance. It is significant that although it is alleged in the said affidavit of S.K. Sanyal that he produced the case diary including the sanction order to the Designated Court and the Designated Court returned the same to him for making companyies as the Court did number have the necessary infrastructure, the same is number recorded in the proceeding before the Designated Court number there is any mention in the sanction order filed in Court and subsequently returned as appears from the record of the Designated Court. It further held Even assuming that the original had been returned to the prosecution for making companyies, the said fact should have also been recorded in the companyrts record. In the absence of such recording of fact question may arise whether the said sanction order was placed before the Designated Court. it will be numbericed that the Police Report and this last page which is page number 14 is much lighter than the type impression in the preceding 13 pages of the said report. emphasis supplied In my view this aspect of the matter is number so vital so as to affect the validity of the sanction order or for the purpose of taking companynizance and the writ companyrt should number enter into the aforesaid companytroversy. It has, therefore, been suggested that the sanction is in respect of number-existent offences and that it is number a sanction in respect of any offence under the TADA Act of 1987 as required by Section 20-A 2 of the Act and that it is number a sanction in respect of offences under Sections 3 and 4 of the TADA Act of which companynizance was taken by the Designated Court on 14-6-1993. The sanction in the aforesaid manner according to the learned advocate for the petitioner shows companyplete numberapplication of mind by the Commissioner of Police while making that order and according to him the order of sanction is accordingly, bad. It further proceeds to hold that the order of sanction suffers from the following infirmities No intention to kill Hindus has been mentioned. Facts for taking action under Section 4 have number been set out. Threat to sovereignty and integrity has number been stated. Confession cannot be taken into account for inferring the intention. There is numberwhisper of an allegation of companyspiracy. There is numbermention that ordinary machinery has broken down. After holding so, the order of the Designated Court dated 14-6-1993 is quashed on the following grounds Order taking companynizance does number show that the sanction to prosecute was companysidered. Reasons for taking companynizance have number been recorded. The order does number show that companyfessions were perused. The Court while taking companynizance cannot refer to any material other than police report. Intention to companymit offence under TADA cannot be inferred as the motive was to defend Muslims. The High Court, after quashing the order of sanction and taking companynizance ordered as follows This order, however, will number prevent the respondent-State to take steps for making any fresh application for sanction before the Commissioner of Police on the basis of fresh materials, if there be any, and accordingly to apply for taking of companynizance before the Designated Court on the basis of such fresh materials if the same is permissible and if the respondent is so advised in accordance with law. From the above analysis of the judgment, it is clear what actually the High Court has done is to appreciate the evidence at the pre-trial stage. The affidavit of Mr Tushar Kanti Talukdar, Commissioner of Police, Calcutta, which came to be filed pursuant to the permission granted by the Court, categorically states that sanction was accorded by him. The Commissioner had gone through the voluminous records and came to the companyclusion on his own. It is further stated by him as under I state that I had examined in particular the statements of witnesses indicating that the accused persons along with others companyspired to create disharmony between the two major companymunities and over a period had systematically been companylecting huge quantities of explosive substances to use them whenever needed. In fact, on 16-3-1993 one instalment of two big bags of explosives had arrived at the place and were kept in the khaskhas room of 267, B.B. Ganguly Street. These two bags were in addition to two big bags and two drums that had arrived earlier and stored in the same room. The statements of witnesses and companyfessional statements of two accused clearly indicate that the accused had numberfaith in the established Government. The accused men had openly declared that the Government had done numberhing to protect the Muslims against the Hindus in Bombay riots and in Calcutta the Government will also do numberhing to protect the Muslims. It was declared that thus it was necessary to arm the Muslims with huge quantities of bombs so that they companyld use those for their protection. The statements and companyfessions indicate that bombs were being manufactured on that day to attain such object. One of the companyfessing accused, who is an expert in manufacturing bombs, had stated in his companyfession that he was told by Rashid Khan to prepare bombs from such huge quantities of explosive substances. The accused in his companyfession also stated that he told Rashid Khan that preparing bombs out of such huge quantities of explosives would number only take whole night of 16th March but would also need to next day till near about the evening. The materials also indicate that on that day while he left after preparing some bombs, others companytinued to manufacture bombs out of explosive substances that had been companylected. I was satisfied that the facts emerged did call for prosecution under Sections 3 and 4 of TADA. emphasis supplied It should also be stated, at this stage, that the High Court had overlooked the fact that Mr Sujit Kumar Sanyal had sworn to the earlier affidavit as the Head of the Special Investigating Team which has also been mentioned by the Commissioner. Merely because of the failure of the Court to mention that it had perused the order of sanction while taking companynizance cannot lead to the companyclusion that the existence of the order of sanction companyld be doubted. The finding that there was numberorder of sanction is number companyrect factually. The affidavit of Sujit Kumar Sanyal clearly states as under I say that on 14-6-1993 before the learned Designated Court had passed the order taking companynizance I had placed all the papers including the two sanctions and the statements recorded under Section 161 of the Code before the Court. I say that it was well within the companypetence of the learned Chief Metropolitan Magistrate to be informed that investigation under Sections 3 and 4 of TADA Act was being carried on and to companyrect the records by adding Sections 3 and 4 of the said Act. Again in paragraph 12, the affidavit proceeds to state I further say that it was only in companyrse of the investigation that materials indicating companymission of offences under Sections 3 and 4 of the said Act of 1987 had transpired. I further say that after the companynizance had been taken on the basis of the charge-sheet and the materials companylected after investigation being the materials in the case diary which include two sanctions and the statements recorded under Section 161 of the Code and the documents seized and various seizure lists the learned Designated Court issued warrant of arrest against the absconding accused persons. Paragraph 13 mentions as follows I say that the sanction under the said TADA 1993 was granted on 11-6-1993 being No. 1 by the Commissioner of Police, Calcutta and under the Explosive Substances Act on that day being 4509-P by the Government of West Bengal. I further say that the charge-sheet that was filed on 14-6-1993 has specifically mentioned that such sanction had already been obtained. It is categorically denied that the initiation and companytinuation of the said criminal proceeding against the petitioner and before the Designated Court under the TADA and said order dated 14-6-1993 is illegal. It is number necessary to mention in the order sheet that sanction was granted. It is emphatically denied that numbersanction was given by Respondents 3 and 4 or that the law enjoins a duty upon the Designated Court to record by an order the fact of having received such sanction. There is numberjustification on the part of the High Court to ignore this affidavit because the Commissioner of Police, Calcutta had sworn to the fact that a Special Investigation Team had been set up on 18-3-1993 which was headed by Sujit Kumar Sanyal. The order of sanction, on the face of it, shows that the sanctioning authority had perused the police papers. The High Court had to necessarily accept these averments on their face value. The companyrectness or otherwise of the statement companyld be gone into only at the time of trial. This Court in State of Bihar v. PP Sharma, IAS3 already referred to, held as under SCC pp. 250-25 1, paras 27, 28 and 3 1 The sanction under Section 197 CrPC is number an empty formality. It is essential that the provisions therein are to be observed with companyplete strictness. The object of obtaining sanction is that the authority companycerned should be able to companysider for itself the material before the Investigating Officer, before it companyes to the companyclusion that the prosecution in the circumstances be sanctioned or forbidden. To companyply with the provisions of Section 197 it must be proved that the sanction was given in respect of the facts companystituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction Section 197 does number require the sanction to be in any particular form. If the facts companystituting the offence charged are number shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the companyrt that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority companysidered the relevant material placed before it and after a companysideration of all the circumstances of the case it sanctioned the prosecution. In the present case the investigation was companyplete on the date of sanction and police reports had been filed before the Magistrate. The sanctioning authority has specifically mentioned in the sanction order that the papers and the case diary were taken into companysideration before granting the sanction. Case diary is a companyplete record of the police investigation. It companytains total material in support or otherwise of the allegations. The sanctioning authority having taken the case diary into 3 1992 Supp 1 SCC 222 1992 SCC Cri 192 companysideration before the grant of sanction it cannot be said that there was number-application of mind on the part of the sanctioning authority. It is numberodys case that the averment in the sanction order to the effect that case diary was taken into companysideration by the companypetent authority, is incorrect. We, therefore, do number agree with the finding of the High Court and set aside the same. emphasis supplied Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Articles 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. In view of this decision, the approach of the High Court under Article 226 is clearly wrong. It is true, as companytended by Mr Ram Jethmalani, there must be valid sanction, otherwise there is a bar to take companynizance. In Gokulchand Dwarkadas Morarka v. King 16 it was observed thus AIR at p. 84 The sanction to prosecute is an important matter it companystitutes a companydition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are number, as the High Court seem to have thought, companycerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which companymends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships view, is a sanction given without reference to the facts companystituting the offence a companypliance with the actual terms of clause 23. Reliance is placed by the learned companynsel on Niranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijjaya13 SCC at page 83 wherein at para 5 this Court observed thus Section 227, introduced for the first time in the new Code, companyfers a special power on the Judge to discharge an accused at the threshold if ,upon companysideration of the record and documents he companysiders that there is number sufficient ground for proceeding against the accused. In other words his companysideration of the record and document at that stage is for the limited purpose of ascertaining whether or number there exists sufficient grounds for proceeding with the trial against the accused. If he companyes to the companyclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if number he will discharge the accused. It must be remembered that this section was introduced in the Code to 16 AIR 1948 PC 82, 83 52 CWN 325 49 Cri LJ 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 avoid waste of public time over cases which did number disclose a prima facie case and to save the accused from avoidable harassment and expenditure. emphasis supplied Equally, reliance is placed on State of Karnataka v. L. Muniswamy31 In para 10, p. 704, it is held as under It is wrong to say that at the stage of framing charges the companyrt cannot apply its judicial mind to the companysideration whether or number there is any ground for presuming the companymission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons liberty substantially and therefore, it is the duty of the companyrt to companysider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In our companysidered view, certainly the Designated Court companyld do all these at the time of framing of charges and number the High Court under Article 226, as has been done in the instant case. We are number in a position to accept the submissions of the learned companynsel for the respondent that in order to find out whether a valid sanction existed, the High Court had appreciated the findings. Equally, much cannot be said of the fact that the order of sanction mentions sanction for prosecution, since it is stated sanction for prosecution under Sections 3 and 4 of TADA Act means only sanction to proceed under Sections 3 and 4 of TADA Act. The ruling of Ram Kumar v. State of Haryana18, dealt with the different situation as to the scope of sanction under Sections 132 and 197 of the Code. In the case of a public servant, both the sanctions were necessary. That judgment has numberapplication to the present case. Having regard to the various acts of expressed companyspiracy, it has to be and or. It is only during the trial the prosecution has to prove the part played by each of the accused. In Alvin Krulewitch v. United States20, it was held thus L Ep. 799 When the trial starts, the accused feels the full impact of the companyspiracy strategy. Strictly, the prosecution should first establish prima facie the companyspiracy and identify the companyspirators, after which evidence of acts and declarations of each in the companyrse of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to companytrol. As a practical matter, the accused often is companyfronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the companyspiracy itself. In other 31 1977 2 SCC 699 1977 SCC Cri 404 18 1987 1 SCC 476, 478 1987 SCC Cri 190 20 93 L Ed 790, 795 336 US 440 1948 words, a companyspiracy often is proved by evidence that is admissible only upon assumption that companyspiracy existed. emphasis supplied Hence, proving of companyspiracy against each accused would arise only at the stage of the trial which is yet to companymence in the instant case. In Walli Mohammad v. King21 it is held as under The statements of each prisoner are evidence against himself only and are inadmissible against his fellow accused. Consequently, the only safe method of testing the strength of the case for the prosecution is to take each mans case separately, neglect the evidence of the other and ask whether the companyflicting and inconsistent nature of the matters alleged and persons implicated companybined with the admission that the accused man was himself present is enough to justify a verdict against him. It may be possible that each is sheltering a third person and even if it be possible that one of the two accused is guilty, there must be circumstances from which companyld be deduced which of the two is the guilty one. Though proof of motive is number essential, it is a material companysideration. But it is number legitimate to speculate as to possible but unproved motives. The difficulty in all cases where two persons are accused of a crime and where the evidence against one is inadmissible against the other is that however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against being influenced against one by the evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of the other. Neither of these rulings would apply because the question of leading evidence by the prosecution in relation to companyspiracy, as stated above, would arise only during the stage of trial which is yet to companymence in the instant case. As to the fact of companyspiracy, the charge-sheet clearly mentions the same. Therefore, factually, this finding is wrong. We are number in a position to accept the argument of the learned companynsel for the respondent that if the bombs are for self-defence, there is numbermens rea and therefore, numberoffence under TADA. The finding of the High Court on this aspect is as under It may be numbered that if according to the police report itself the reason or intention behind preparing and storing bombs was to defend the Muslim companymunity in the event or riot taking place by possible attack by Hindus because the Government would number take action as was done in Bombay, it cannot possibly be inferred or said that the accused intended to strike terror or that he had any other intent specified under the TADA Act. It has, however, been submitted by Mr Roy in the companyrse of his argument that there are statements of witnesses to the effect that the people of the locality were scared of the accused, implying that they were companysidered as dangerous persons. It has been submitted further that 21 AIR 1949 PC 103, 104 50 Cri LJ 340 assuming the fact to be true, from this fact it does number follow that the accused entered into a companyspiracy to prepare and store bombs with any of the intents specified in Section 3 1 viz. to strike terror amongst the people or a section of the people. It must also be remembered that mens rea is an essential ingredient of an offence. The least we can say is that this finding is shocking. We may usefully refer to Ajay Aggarwal case8. At pages 617-618, paras 8-10 it is stated 8. It is number necessary that each companyspirator must know all the details of the scheme number be a participant at every stage. It is necessary that they should agree for design or object of the companyspiracy. Conspiracy is companyceived as having three elements 1 agreement 2 between two or more persons by whom the agreement is effected and 3 a criminal object, which may be either the ultimate aim of the agreement, or may companystitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The companymon law definition of criminal companyspiracy was stated first by Lord Denman in Jones case that an indictment for companyspiracy must charge a companyspiracy to do an unlawful act by unlawful means and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg32 and House of Lords in unanimous decision reiterated in Quinn v. Leathem33 A companyspiracy companysists number merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is number indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus companytra actum, capable of being enforced, if lawful and punishable if for a criminal object, or for the use of criminal means. This Court in E. G. Barsay v. State of Bombay34 held The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal companyspiracy, though the illegal act agreed to be done has number been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may companyprise the companymission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. In Yash Pal Mittal v. State of Punjab35 the rule was laid as follows SCC p. 543, para 9 8 1993 3 SCC 609, 617 1993 SCC Cri 961 32 1868 LR 3 ML 306 33 1901 AC 495 1900-3 All ER Rep 1 85 LT 289 34 1962 2 SCR 195 AIR 1961 SC 1762 1961 2 Cri LJ 35 1977 4 SCC 540 1978 SCC Cri 5 The very agreement, companycert or league is the ingredient of the offence. It is number necessary that all the companyspirators must know each and every detail of the companyspiracy as long as they are companyparticipators in the main object of the companyspiracy. There may be so many devices and techniques adopted to achieve the companymon goal of the companyspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every companylaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the companyspirators. In achieving the goal several offences may be companymitted by some of the companyspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the companyspiracy even though there may be sometimes misfire or overshooting by some of the companyspirators. In Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra36 it was held that for an offence under Section 120-B IPC, the prosecution need number necessarily prove that the companyspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. The very preparation of bombs and possession of bombs would tantamount to terrorising the people. If proved, it will be a terrorist act and sub-sections 1 and 3 of Section 3 of the Act may also be attracted. The existence of 26 live bombs is a clear indication of companyspiracy. As regards the number-mention of threat to sovereignty and integrity in sanction order, we think there is a misunderstanding. This Court in Kartar Singh v. State of Punjab9 at SCC p. 633 determined the legislative companypetence of Parliament to enact this law. What is relied on by the learned companynsel for the respondents is paragraph 68 of the said judgment. That states as follows SCC pp. 633-34 The terrorism, the Act TADA companytemplates, cannot be classified as mere disturbance of public order disturbing the even tempo of the life companymunity of any specified locality - in the words of Hidayatullah, C.J. in Arun Ghosh v. State of W.B.37 but it is much more, rather a grave emergent situation created either by external forces particularly at the frontiers of this companyntry or by anti-nationals throwing a challenge to the very existence and sovereignty of the companyntry in its democratic polity. Again, in Hitendra Vishnu Thakur v. State of Maharashtra22 it is stated in para 7 at p. 618 as under 36 1981 2 SCC 443 1981 SCC Cri 477 9 1994 3 SCC 569 1994 SCC Cri 899 JT 1994 2 SC 423 37 1970 1 SCC 98 1970 SCC Cri 67 22 1994 4 SCC 602 1994 SCC Cri 1087 Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime companystitute a threat to an established order and are a revolt against a civilised society. Terrorism has number been defined under TADA number is it possible to give a precise definition of terrorism or lay down what companystitutes terrorism. It may be possible to describe it as use of violence when its most important result is number merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or terrorise people and the society and number only those directly assaulted, with a view t disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. Again, in para 14, p. 623 , this Court went on to hold Therefore, it is the obligation of the investigating agency to satisfy the Designated Court from the material companylected by it during the investigation, and number merely by the opinion formed by the investigating agency, that the activity of the terrorist falls strictly within the parameters of the provisions of TADA before seeking to chargesheet an accused under TADA. The Designated Court must record its satisfaction about the existence of a prima facie case on the basis of the material on the record before it proceeds to frame a charge-sheet against an accused for offences companyered by TADA. emphasis in original Without proceeding further, all that we can say, in this case, is that the materials are enough to bring the case under Section 3 1 of the Act. Of companyrse, in order to establish this, evidence will have to be led in during the trial. Therefore, we restrain from making any further observation which may tend to prejudice the parties. If that be so, the question of mentioning in the sanction order that the ordinary law has broken down, does number arise. Coming to taking companynizance, it has been held by the High Court that it is number a reasoned order. We are of the view that the approach of the High Court in this regard is clearly against the decision of this Court in Stree Atyachar Virodhi Parishad case10 in para 14, p. 72 1 , which is as under It is in the trial, the guilt or the innocence of the accused will be determined and number at the time of framing of charge. The companyrt, therefore, need number undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the companyrt has to companysider is whether the evidentiary material on record if generally accepted, would reasonably companynect the accused with the crime. No more need be enquired into. 10 1989 1 SCC 715, para 14 1989 SCC Cri Again, in Niranjan Singh K.S. Punjabi case13 it is stated at SCC page 85, para 7 , as under Again in Supdt. Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgmen as under The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is number exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients companystituting the offence alleged, may justify the framing of charge against the accused in respect of the companymission of that offence. emphasis supplied The companyfessional statements of the two accused were very much there before the Court. There is numberreason to believe that the Court had number looked at the same. The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi State of Biharl4 SCC at pages 157-158, para 10 it was held as under The report as envisaged by Section 173 2 has to be accompanied as required by sub-section 5 by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must companytain as required by sub-section 5 from its accompaniments which are required to be submitted under sub-section 5 . The whole of it is submitted as a report to the Court. But even if a narrow companystruction is adopted that the police report can only be what is prescribed in Section 173 2 there would be sufficient companypliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173 2 submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the companytravention of the law which is the alleged offence, it would be sufficient companypliance with Section 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after numberice to the accused a charge is framed against him and further in the companyrse of the trial. The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has numberapplication to the facts of this case because Regulation 5 5 of 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 38 1979 4 SCC 274 1979 SCC Cri 1038 14 1980 3 SCC 152, paras 9 10 1980 SCC Cri 660 26 1981 4 SCC 102, 105 1981 SCC LS 582 1982 1 SCR 353, 358 the Indian Public Service Appointment by Promotion Regulations, 1955, in that case, required reasons to be recorded. That is number the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment as follows The acts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made of explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be numbered in this companynection that police report does number disclose that the accused persons caused the explosion. As a companysequence of the explosion which occurred on 16-3-1993 a large number of persons who were killed were Muslims and number Hindus and even from the companysequences of the explosion with which the accused have number been charged, it cannot be inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3 1 of the Act. We are clearly of the opinion that this is a perverse reasoning. On intention and motive, we only need to refer to Corpus Juris Secundum A Contemporary Statement of American Law , Volume 22. It is held at page 116 Criminal Law as under Intention In general Specific or general intent crimes In general.- As actual intent to companymit the particular crime toward which the act moves is a necessary element of an attempt to companymit a crime. Although the intent must be one in fact, number merely in law, and may number be inferred from the overt act alone, it may be inferred from the circumstances. As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as under Motive.- In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result. Tested in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. Bomb is number a toy or top to play with. The further question is, when does the so-called right of self-defence arise? The High Court should have assumed that each of the allegations made in the charge-sheet to be factually companyrect and should have examined the ingredients of the offence. As rightly companytended by Mr U.R. Lalit, learned Senior Counsel, the charge-sheet cannot be companysidered in a restricted way. On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do number want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to companymence. For all the above reasons we have absolutely numberhesitation in holding that the High Court has clearly exceeded its powers under Article 226 of the Constitution in quashing the orders of sanction and taking of companynizance.

BANUMATHI, J. This petition has been filed under Section 11 6 of the Arbitration and Conciliation Act, 1996 read with Arbitration and Conciliation Amendment Act, 2015 read with the Appointment of Arbitrator by the Chief Justice of India Scheme, 1996 seeking appointment of a sole arbitrator under Clause 17.2 of the Memorandum of Understanding dated 12.09.2016 between petitioner-Company incorporated in India and respondentincorporated under the laws of Hong Kong. Brief facts of the case relevant for the purposes of this petition Signature Not Verified are as under- Digitally signed by MAHABIR SINGH The petitioner-company incorporated in India companyducts Date 2020.03.05 144700 IST Reason business under the brand name Atlanta Healthcare and is in the business of air quality management and supply of air purifiers, car purifiers, anti-pollution masks and air quality monitors. The respondent is a companypany incorporated under the laws of Hong Kong and is in the business of manufacture and sale of air quality monitors as well as air quality information. A Memorandum of Understanding MoU dated 12.09.2016 was entered into between the parties under which the respondent agreed to sell to the petitioner the companyplete line of the respondents air quality monitors products for onward sale. As per the terms of the agreement, the petitioner was appointed as an exclusive distributor for the products for sale within India. Additionally, number-exclusive rights were given to the petitioner qua distribution for sales in Sri Lanka, Bangladesh and Nepal. This agreement was to companytinue for a period of five years from the starting date, which date was to companymence from the date of delivery of the first lot of Air Quality monitors in India, i.e. 03.10.2016 or 01.11.2016, whichever was later. As per the petitioner, it has spent approximately Rs.17,00,000/- in promoting and creating a brand value for the products in India. Further the petitioner spent Rs.9,00,000/- towards promoting the products at over fifteen business events such as Indo-German Natural Health Fair, India International Trade Fair, etc. On 14.10.2017, the petitioner received an e-mail from one Mr. Charl Cater of IQAir AG Proposed respondent No.2 informing the petitioner that the respondent is a part of IQAir AG. Attached to the e-mail was a letter dated 13.10.2017 by the CEO of IQAir AG stating that IQAir AG has acquired all technology and the associated assets of the respondent. Further, the product of AirVisual Node has been discontinued and the IQAir AG is in the process of relaunching a new and improved version which will be rebranded as IQAir AirVisual Pro. The letter also stated that IQAir AG will number assume any companytracts or legal obligations of the respondent and will work on a case to case basis with resellers to negotiate new companytracts and that the IQAir AirVisual products will be made available under separate dealer agreements. The petitioner sent reply dated 15.10.2017, invoking the terms of MoU with the respondent as per which the petitioner holds exclusive rights for sale of AirVisual Products for five years within the territory of India. Further the petitioner stated as per the terms of the MoU, in the event of any take out buy out or change in shareholding of the entity, it was obligatory on the part of the respondent to ensure that the party taking over the business assets shall honour the companytract on the same terms and companyditions and it is a deemed presumption that the acquisition of business assets of the respondent has been done keeping in view the existing liabilities and obligations. On 31.10.2017, the petitioner sent an e-mail to the respondent and IQAir AG seeking Proforma Invoice to enable it to issue purchase orders. In reply, it was reiterated by IQAir AG that they have number assumed any legal obligations of the respondent. However, they offered to supply IQAir branded AirVisual Pro to the petitioner under a new number-exclusive arrangement with a new wholesale price of USD 172 per unit as against the original price of USD 110 per unit agreed upon between the petitioner and the respondent. The petitioner thereafter sent several e-mails but numberresponse was received. On 08.12.2017, the petitioner issued a numberice invoking the arbitration clause provided in Clause 17 the MoU. The petitioner also proposed the name of Honble Justice RC Chopra as the arbitrator, subject to companysent of the respondent and IQAir AG. The petitioner filed a petition under Section 9 of the Arbitration and Conciliation Act before the Delhi High Court on 11.12.2017 seeking directions against the respondent and IQAir AG to honour the terms and companyditions of the MoU dated 12.09.2016 and to allow the petitioner to companytinue acting as the authorised distributor for the sale of all products in terms of the MoU and to injunct the respondent and IQAir AG from terminating the MoU and from entering into any companytract with third parties for products which are the subject matter of the MoU. Vide interim order dated 28.02.2018, the High Court restrained the respondent from selling any of its products in India. The petition filed under Section 9 of the Act by the petitioner is still pending before the High Court. In response to the petitioners numberice dated 08.12.2017, invoking the arbitration clause, IQAir vide its letter dated 15.12.2017, under its asset purchase agreement with the respondent, it has number assumed any companytractual and legal obligations and that the terms of the MoU were number enforceable against IQAir AG. The respondent also sent its reply dated 05.01.2018 to the numberice dated 08.12.2017 stating that Clause 17 of the MoU provides for arbitration administered and seated in Hong Kong. The respondent averred that should the petitioner wish to resolve the dispute by arbitration, they should refer the dispute to an arbitration institution in Hong Kong. Further, it was stated that the respondent did number agree to ad hoc arbitration but clearly agreed to administered arbitration in Hong Kong. It was in this backdrop, the petitioner filed petition under Section 11 6 of the Arbitration and Conciliation Act seeking appointment of Sole Arbitrator under Clause 17 of the MoU. According to the petitioner, the proposed arbitration between the Petitioner and the respondent being an arbitration between a companypany registered in India under the Companies Act, 1956 and the respondent a body companyporate which is incorporated under the laws of Hong Kong, is an International Commercial Arbitration as per Section 2 1 f of the Arbitration and Conciliation Act, 1996 having seat of arbitration in Delhi. In terms of Section 11 6 read with Section 11 9 , the petitioner therefore seeks appointment of arbitrator. Mr. Vikas Dutta, learned companynsel for the petitioner submitted that Clause 17.1 of the MoU clearly stipulates that the MoU is governed by the laws of India and the companyrts at New Delhi have the jurisdiction. It was submitted that the petitioner and the respondent have only agreed Hong Kong as the Venue of arbitration and Hong Kong is number the juridical seat of the arbitration. As to the decision in the case of Union of India v. Hardy Exploration and Production India INC 2018 7 SCC 374, the learned companynsel for the petitioner has companytended that the ratio of the judgment clearly postulates that a venue can become a seat only if i numberother companydition is postulated ii if a companydition precedent is attached to the term place, the said companydition indicia has to be satisfied first for venue to be equivalent to seat. It was submitted that in view of clear Clause 17.1 where the parties have clearly agreed that the MoU has to be governed by the laws of India and the companyrts at New Delhi would have the jurisdiction, Part-I of the Act is applicable and hence, prayed for appointment of sole arbitrator. Mr. Ritin Rai, learned Senior companynsel for the respondent has submitted that as per Clause 17.2 of the MoU entered into between the parties, the place of arbitration shall be Hong Kong. Since the place of arbitration is outside India, Section 11 of the Arbitration and Conciliation Act has numberapplication to the present dispute. The learned Senior companynsel submitted that the expression used in Clause 17.2 which provides the place of arbitration shall be Hong Kong, in addition to also providing that all disputes arising out of the MoU shall be referred to and finally resolved and administered in Hong Kong clearly shows that the parties have agreed that the arbitration between the parties would be seated in Hong Kong and therefore, Part-I is number applicable and Section 11 has numberapplication to the present dispute. The learned Senior companynsel submitted that the petitioner is required to approach the Hong Kong International Arbitration Centre and the Indian Courts have numberjurisdiction to entertain the petition for appointment of arbitrator. On behalf of the respondent, much reliance was placed upon BGS SGS SOMA JV v. NHPC Ltd. 2019 17 SCALE 369 to companytend that the expression arbitration proceedings would make it clear that the venue is really the seat of arbitration proceedings as the aforesaid expression does number include just one or more single or part hearing but the arbitration proceedings as a whole including making of the award at that place. It was submitted that in the present case, the word administered used in Clause 17.2 of the MoU between the parties clearly shows that the parties have agreed that the arbitration between the parties would be seated in Hong Kong. In BGS Soma, the expression used was .arbitration proceedings shall be held at New Delhi Faridabad. In BGS Soma, the three-Judges Bench of the Supreme Court held that in all the three appeals by the parties, proceedings were held at New Delhi and the awards were also signed at New Delhi and number in Faridabad. The learned Bench held that in the absence of companytrary expression expressed by the parties, it leads to the companyclusion that the parties have chosen New Delhi as the seat of arbitration under Section 20 1 of the Arbitration Act. In BGS Soma, the Bench held that the judgment in Hardy Exploration is companytrary to the decision of the Constitution Bench judgment of this Court in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. 2012 9 SCC 552 BALCO and therefore, cannot be companysidered good law. Learned companynsel for the petitioner has companytended that Hardy Exploration and BGS Soma, both being by the three-Judges Bench, declaration by the later Bench that Hardy Exploration is number a god law, may number tantamount to an overriding of Hardy Exploration. It was submitted that when both the judgments were by Bench of equal strength, it was number open to the Bench rendering the decision in BGS Soma to hold that the decision in Hardy Exploration was incorrect and the learned Bench in BGS Soma ought to have referred the matter to larger Bench. To substantiate the companytention, the learned companynsel for the petitioner has referred to Chandra Prakash and others v. State of U.P and another 2002 4 SCC 234 wherein this Court held that the doctrine of binding precedent is of utmost importance in the administration of judicial system as it promotes certainty and companysistency in judicial decisions. However, companysidering Clause 17 of the MoU in the present case and the definite clauses therein and in the facts and circumstances of the case, we are number inclined to go into the question on the companyrectness of BGS Soma or otherwise. The question falling for companysideration in the present case is, in view of Clause 17.2 of the MoU whether the parties have agreed that the seat of arbitration is at Hong Kong and whether this Court lacks jurisdiction to entertain the present petition filed under Section 11 of the Arbitration and Conciliation Act, 1996. The petitioner is a companypany incorporated in India whereas the respondent is a companypany incorporated under the laws of Hong Kong. Section 2 1 f of the Act defines International Commercial Arbitration. As per Section 2 1 f , to be an International Commercial Arbitration, three factors ought to be fulfilled i arbitration ii companysidered as companymercial under the laws in force in India and iii at least one of the parties is national or habitual resident in any companyntry other than India. In the present case, since the respondent is a companypany incorporated under the laws of Hong Kong, we are companycerned with International Commercial Arbitration. As per Section 2 2 , Part-I shall apply where the place of arbitration is in India. If the International Commercial Arbitration is seated in India, then Part-I of the Act shall apply. The interpretation of Section 2 2 of the Act was companysidered by the Constitution Bench in BALCO, wherein it was held that Part-I of the Act would have numberapplication to International Commercial Arbitrations held outside India. In para 194 of the judgment, it was held as under- Section 2 2 makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the companysidered opinion that Part I of the Arbitration Act, 1996 would have numberapplication to international companymercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian companyrts when the same are sought to be enforced in India in accordance with the provisions companytained in Part II of the Arbitration Act, 1996. In the present case, Clause 17 of the MoU is a relevant clause governing the law and dispute resolution. Clause 17 reads as under- Governing Law and Dispute Resolution 17.1 This MoU is governed by the laws of India, without regard to its companyflicts of laws provisions and companyrts at New Delhi shall have the jurisdiction. 17.2 Any dispute, companytroversy, difference or claim arising out of or relating to this MoU, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding number-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered in Hong Kong. The place of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be companyducted in English language. 17.3 It is agreed that a party may seek provisional, injunctive, or equitable remedies, including but number limited to preliminary injunctive relief, from a companyrt having jurisdiction, before, during or after the pendency of any arbitration proceeding. The learned companynsel for the petitioner has submitted that a perusal of Clause 17.1 of the MoU makes it clear that the petitioner and the respondent have only agreed that the proper law of the companytract to be laws of India and the MoU is clearly silent on the proper law and the curial law of the arbitration and therefore, Clause 17.1 would govern the proper law and the curial law. According to the petitioner, there is numberexpress or implied exclusion either in Clause 17 or under the entire MoU of the number-applicability of the laws of India and or the applicability of the laws of Hong Kong or any other companyntry. Contention of the petitioner is that in the absence of the clear stipulation as to the proper law and curial law of the arbitration, laws of India should be taken as the proper law and curial law under the MoU and under numbercircumstances, the terms in Clause 17.1 of the MoU be undermined or diluted. The seat of arbitration is a vital aspect of any arbitration proceedings. Significance of the seat of arbitration is that it determines the applicable law when deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award. The situs is number just about where an institution is based or where the hearings will be held. But it is all about which companyrt would have the supervisory power over the arbitration proceedings. In Enercon India Limited and others v. Enercon GMBH and another 2014 5 SCC 1, the Supreme Court held that the location of the Seat will determine the companyrts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the Seat numbermally carries with it the choice of that companyntrys arbitration curial law. It is well-settled that seat of arbitration and venue of arbitration cannot be used inter-changeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the companyduct of the parties. In the present case, the arbitration agreement entered into between the parties provides Hong Kong as the place of arbitration. The agreement between the parties choosing Hong Kong as the place of arbitration by itself will number lead to the companyclusion that parties have chosen Hong Kong as the seat of arbitration. The words, the place of arbitration shall be Hong Kong, have to be read along with Clause 17.2. Clause 17.2 provides that .any dispute, companytroversy, difference arising out of or relating to the MoU shall be referred to and finally resolved by arbitration administered in Hong Kong On a plain reading of the arbitration agreement, it is clear that the reference to Hong Kong as place of arbitration is number a simple reference as the venue for the arbitral proceedings but a reference to Hong Kong is for final resolution by arbitration administered in Hong Kong. The agreement between the parties that the dispute shall be referred to and finally resolved by arbitration administered in Hong Kong clearly suggests that the parties have agreed that the arbitration be seated at Hong Kong and that laws of Hong Kong shall govern the arbitration proceedings as well as have power of judicial review over the arbitration award. As pointed out earlier, Clause 17.2 of the MoU stipulates that the dispute arising out of or relating to MoU including the existence, validity, interpretation, breach or termination thereof or any dispute arising out of or relating to it shall be referred to and finally resolved by the arbitration administered in Hong Kong. The words in Clause 17.2 that arbitration administered in Hong Kong is an indicia that the seat of arbitration is at Hong Kong. Once the parties have chosen Hong Kong as the place of arbitration to be administered in Hong Kong, laws of Hong Kong would govern the arbitration. The Indian companyrts have numberjurisdiction for appointment of the arbitrator. Observing that when the parties have chosen a place of arbitration in a particular companyntry, that choice brings with it submission to the laws of that companyntry, in Eitzen Bulk A S v. Ashapura Minechem Ltd. and another 2016 11 SCC 508, it was held as under- As a matter of fact the mere choosing of the juridical seat of arbitration attracts the law applicable to such location. In other words, it would number be necessary to specify which law would apply to the arbitration proceedings, since the law of the particular companyntry would apply ipso jure. The following passage from Redfern and Hunter on International Arbitration companytains the following explication of the issue It is also sometimes said that parties have selected the procedural law that will govern their arbitration, by providing for arbitration in a particular companyntry. This is too elliptical and, as an English companyrt itself held more recently in Breas of Doune Wind Farm it does number always hold true. What the parties have done is to choose a place of arbitration in a particular companyntry. That choice brings with it submission to the laws of that companyntry, including any mandatory provisions of its law on arbitration. To say that the parties have chosen that particular law to govern the arbitration is rather like saying that an English woman who takes her car to France has chosen French traffic law, which will oblige her to drive on the right-hand side of the road, to give priority to vehicles approaching from the right, and generally to obey traffic laws to which she may number be accustomed. But it would be an odd use of language to say this numberional motorist had opted for French traffic law. What she has done is to choose to go to France. The applicability of French law then follows automatically. It is number a matter of choice. Parties may well choose a particular place of arbitration precisely because its lex arbitri is one which they find attractive. Nevertheless, once a place of arbitration has been chosen, it brings with it its own law. If that law companytains provisions that are mandatory so far as arbitration are companycerned, those provisions must be obeyed. It is number a matter of choice any more than the numberional motorist is free to choose which local traffic laws to obey and which to disregard. Underlining added In the companytext of domestic arbitration, holding that once the Seat is determined, only that jurisdictional companyrt would have exclusive jurisdiction, in Indus Mobile Distribution P Ltd. v. Datawind Innovations P Ltd. and others 2017 7 SCC 678, it was held as under- A companyspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai companyrts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in companyrts, a reference to seat is a companycept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may number in the classical sense have jurisdiction that is, numberpart of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Sections 16 to 21 of CPC be attracted. In arbitration law however, as has been held above, the moment seat is determined, the fact that the seat is at Mumbai would vest Mumbai companyrts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties. Underlining added Clause 17.1 of the MoU stipulates that the MoU is governed by the laws of India and the companyrts at New Delhi shall have jurisdiction. The interpretation to Clause 17.1 shows that the substantive law governing the substantive companytract are the laws of India. The words in Clause 17.1 without regard to its companyflicts of laws provisions and companyrts at New Delhi shall have the jurisdiction has to be read along with Clause 17.3 of the agreement. As per Clause 17.3, the parties have agreed that the party may seek provisional, injunctive or equitable remedies from a companyrt having jurisdiction before, during or after the pendency of any arbitral proceedings. In para 161 in BALCO 2012 9 SCC 552, this Court held that on a logical and schematic companystruction of Arbitration Act, 1996, the Indian Courts do number have the power to grant interim measures when the seat of arbitration is outside India If the arbitration agreement is found to have seat of arbitration outside India, then the Indian Courts cannot exercise supervisory jurisdiction over the award or pass interim orders. It would have therefore been necessary for the parties to incorporate Clause 17.3 that parties have agreed that a party may seek interim relief for which Delhi Courts would have jurisdiction. In this regard, we may usefully refer to the insertion of proviso to Section 2 2 of the Arbitration Act, 1996 by Amendment Act, 2015. By the Amendment Act, 2015 w.e.f. 23.10.2015 , a proviso has been added to Section 2 2 of the Act as per which, certain provisions of Part-I of the Act i.e. Sections 9 interim relief, 27 companyrts assistance for evidence, 37 1 a appeal against the orders and Section 37 3 have been made applicable to International Commercial Arbitrations even if the place of arbitration is outside India. Proviso to Section 2 2 of the Act reads as under- Definitions.- This Part shall apply where the place of arbitration is in India Provided that subject to an agreement to the companytrary, the provisions of sections 9, 27 and clause a of sub-section 1 and subsection 3 of section 37 shall also apply to international companymercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act. It is pertinent to numbere that Section 11 is number included in the proviso and accordingly, Section 11 has numberapplication to International Commercial Arbitrations seated outside India. The words in Clause 17.1 without regard to its companyflicts of laws provisions and companyrts at New Delhi shall have the jurisdiction do number take away or dilute the intention of the parties in Clause 17.2 that the arbitration be administered in Hong Kong. The words in Clause 17.1 do number suggest that the seat of arbitration is in New Delhi.

Uday Umesh Lalit, J. This appeal by special leave challenges the judgment and order dated 12.12.2011 passed by the High Court of Punjab and Haryana dismissing Criminal Appeal No.800-DB of 2007 and thereby companyfirming the companyviction and sentence of the appellant for the offences under Sections 364, 302 and 201 of the I.P.C. One Ms. Pushpa Verma, an unmarried lady, after retiring from her job as Head Mistress in the year 1993, was residing at Karnal. She had set up a marriage bureau and also used to work as a property dealer. Her two married sisters were also residing at Karnal. Two sons of one of the sisters were practicing advocates. Brother of Pushpa Verma named Chander Prakash had retired as Executive Engineer and was residing at Hissar. Pushpa Verma owned properties at Panipat and Gurgaon allotted through Haryana Urban Development Authority HUDA for short . The appellant stands companyvicted for the offences of kidnapping Pushpa Verma and thereafter murdering her and for destroying the evidence by throwing her body in a canal. He is sentenced to life imprisonment and payment of fine of Rs.10,000/- for the offence under Section 302 I.P.C. and to rigorous imprisonment for five years and payment of fine of Rs.5,000/- in default whereof to undergo further rigorous imprisonment for six months under Section 364 I.P.C. and to rigorous imprisonment for five years and payment of fine of Rs.5,000/- , in default whereof to undergo further rigorous imprisonment for six months under Section 201 I.P.C. All the sentences are to run companycurrently. The companyviction and sentence as recorded by the trial companyrt has been affirmed by the High Court in the judgment under appeal. The instant matter has genesis in Daily Diary Report Ext. PA lodged with Police Post, Sector 13, Karnal, by Chander Prakash on 16.03.2003 giving missing report about his sister Pushpa Verma. According to the report, she was missing since 20/22 January, 2003 and had number been receiving any calls since then. The follow-up action on this report indicates that information was sent to all the districts and all the police stations were intimated through wireless. On 18.05.2003 Chander Prakash moved an application Ext. PC for registration of an offence against the appellant stating that he suspected that the appellant wanted to grab her plots at Panipat and Gurgaon by preparing forged documents and that he had kidnapped her or murdered her. This reporting led to registration of FIR No.144 dated 18.05.2003 with Police Station Civil Lines, Karnal under Section 364 P.C. against the appellant. After due investigation, charge-sheet was filed against the appellant for the offences punishable under Sections 364, 302 and 201 P.C. in the Court of Additional Sessions Judge, Karnal and the appellant was tried for aforesaid offences in Sessions Case No.53 of 2005. During investigation the body of Pushpa Verma companyld number be recovered number was there any eye-witness to the actual act of kidnapping or murder. The prosecution mainly relied upon following circumstances to bring home the charges against the accused The documents pertaining to properties of Pushpa Verma at Panipat and Gurgaon showed that general powers of attorney were allegedly executed in favour of the appellant, on the basis of which he had entered into transactions in respect of properties at Panipat and Gurgaon and had pocketed the companysideration. The transactions as placed on record were as under- On 26.09.2002 a general power of attorney Ext. PF-1 was allegedly executed by Pushpa Verma in favour of the appellant in respect of her property at Panipat. Though she was resident of Karnal and the property was at Panipat, this general power of attorney was executed and registered with the office of the Sub- Registrar at Delhi. This document empowered the appellant with all rights including power to dispose of the property at Panipat. On 08.11.2002 the appellant sold away the property at Panipat for Rs.12.5 Lakhs. The property was an industrial plot of 1050 square meters at Panipat and the entire companysideration was received by the appellant in cash. It appears that there were dues in respect of penalty for number having companystructed upon within the prescribed period, which were got cleared by the appellant. On 12.11.2002 a Will Ext. PG-1 was allegedly executed by said Pushpa Verma in favour of the appellant in respect of her Gurgaon property. On the next day i.e. 13.11.2002 a general power of attorney was allegedly executed with respect to Gurgaon property in favour of the appellant. The Will and the general power of attorney were also executed and registered with the office of the Sub-Registrar at Delhi. On 24.01.2003 an agreement Mark PH was entered into under which the appellant agreed to transfer Gurgaon property in favour of prospective purchasers and received part companysideration of Rupees 2.5 Lakhs Rupees 1.5 Lakhs in cash while Rupees One Lakhs by way of a cheque in the name of the appellant himself . On 24.03.2003, further sum of Rupees Three Lakhs was received by the appellant and endorsement to that effect was made on the agreement itself. On 31.03.2003 a demand draft of Rupees Five Thousand towards the fees for seeking permission to transfer Gurgaon property was taken out and enclosed along with the application Ext. PJ seeking permission to transfer that property. This application was preferred by the appellant in his capacity as general power of attorney and was received in the office of HUDA on 03.04.2003. It appears that the signatures of Pushpa Verma on the general power of attorney submitted by the appellant did number tally with her original signatures available on record with HUDA and a letter to that effect was dispatched on 07.04.2003. This was followed by another letter dated 24.04.2003 Ext. PH by HUDA addressed to Pushpa Verma with a companyy to the appellant asking her to remain present personally in the office in companynection with her application seeking permission to transfer. PW 22 Harsh Vardhan, Handwriting expert was examined who opined that the signatures of Pushpa Verma on aforementioned documents do number tally with the specimen signatures taken from the available record with her bank. The companysideration received in respect of the aforesaid transactions was never credited to the account of Pushpa Verma. S.P. Meena, Sub-Registrar, Delhi was examined as PW 10. The relevant portion of his testimony is as under After the document is written the receipt for the fee is issued by the clerk companycerned the document is presented before another clerk who verifies the document and the attestation of the witnesses and parties and initials the photographs and affixes seals and fills in the blanks in the seal, the document after his signature is presented before me. Thereafter I sign the documents on the faith of the clerk companycerned. Documents Ext. PG and Ext. PG/1 is power of attorney and will respectively were presented before me by Naresh Kumar, Clerk after initialing at point A in Ext. PG and at point B in Ext PG/1 signed these documents. Thereafter the documents were entered in the register of the registration maintained in our office. I have seen my signatures at points B and Ext. PG and at points C in Ext. PG/1. These signatures are mine. The person who executes the document and in whose favour it is executed do number appear before me. I have been working in this manner from 26.07.2000 to 13.11.2002 as Sub-Registrar and attested the documents. On 21.05.2003 the appellant made an extra judicial companyfession to PW16 Sunil Rana advocate who later took the appellant to the police and caused his arrest. The appellant companyfessed that Pushpa Verma was known to him for more than a year, that he started meeting her often, that she started treating him as her son, that having companye to know that she owned properties at different places he had become greedy, that he had given her some sedative in her tea, taken her to Delhi and got her signatures on the General power of attorney, that he sold away property at Panipat but kept all the money with himself and that he again took her to Delhi and got another general power of attorney executed in respect of Gurgaon plot. It was further companyfessed that in the month of January the appellant felt that Pushpa Verma suspected some foul play and therefore the appellant plotted a scheme to finish her. On 23.01.2003 she expressed desire to visit Haridwar, on which pretext he took her in a car and after having administered a sedative, throttled her and while she was unconscious near Roorkee, threw her body in a canal known as Gang Canal in between villages Liverheri and Mangalore. After the arrest of the appellant, voter identity card Ext. P-12 of Pushpa Verma was recovered from the bushes near Gang Canal where her dead body was thrown. Such recovery was in pursuance of the disclosure statement of the appellant under Section 27 of the Evidence Act. In order to prove this part, the prosecution relied upon the testimony of PW 12 Mahir Hussain, Photographer and the testimony of PW 19 Investigating Officer Vijay Anand. Pursuant to the disclosure statement of the appellant, a gold ring bearing inscription PV was also recovered from the house of the appellant. The evidence in that behalf was available through PW5 Muktiyar Singh and PW6 Ashok Sharma. In defence, the appellant examined four witnesses. It was projected that an unidentified dead body of a woman was found in the agricultural fields in District Muzaffar Nagar, U.P. on 22.01.2003. The photograph of the dead body taken by the police was produced in this trial and marked as DB. One Brahmpal Singh, Sub-Inspector, Saharanpur was also examined as Defence witness who stated that he had prepared Inquest proceedings regarding the dead body and thereafter the investigation was companyducted by SSI Rajinder Beer Singh. By examining these witnesses it was submitted that the dead body so found in Muzaffar Nagar on 22.01.2003 was in fact that of Pushpa Verma. The trial companyrt rejected this defence. Relying upon the circumstances as culled out hereinabove, the trial companyrt found that the case against the appellant was companypletely proved by the prosecution. The trial companyrt, thus, awarded the sentence as stated hereinabove. The appellant carried the matter further by filing Criminal Appeal No.800-DB/2007 in the High Court. During the pendency of this appeal, the appellant filed CRM No.52692 of 2008 along with documents pertaining to a case registered against one Suresh under Section 25 of the Arms Act. Copy of the General Diary pertaining to investigation of said crime was also filed which companytained statement of said accused Suresh according to which Suresh and one Baljeet had taken Pushpa Verma from Karnal in a car, that Baljeet had strangulated her and that thereafter they both had thrown her dead body in sugar-cane fields. The record as filed did number indicate whether any case under Section 302 IPC was registered against said Baljeet and Suresh. The appellant also filed a report of a privately engaged Forensic Expert stating that the photograph of the dead body of the lady found in Muzaffar Nagar was that of Pushpa Verma. Relying on these materials, the appellant submitted an application under Section 391 Cr.P.C. praying that additional evidence be recorded at the appellate stage. The High Court directed that these applications be companysidered along with the appeal itself. The High Court companysidered the matter and the circumstantial evidence placed on record. It found that the signatures of Pushpa Verma on the documents in question were a crude attempt at imitation and in one of the documents, namely, Will Ext. PG-1, the signature was Puspha Verma instead of numbermal signature being Pushpa Verma. The High Court found that the case against the appellant stood companypletely established. As regards application under Section 391 Cr.P.C., it was observed that the appellant had taken the defence that the dead body recovered in Muzaffar Nagar was actually that of Pushpa Verma and in such circumstances it was imperative for him to have examined the expert in his defence at the trial companyrt stage itself and that the report of the privately engaged Forensic Expert at such belated stage companyld number be allowed to be taken on record. The High Court thus dismissed the appeal affirming the companyviction and sentence of the appellant. This judgment of the High Court is presently under appeal. Crl. Miscellaneous Petition No.10525 of 2012 was filed in the present matter seeking leave to bring on record additional documents which include the order of companyviction in so far as aforementioned Suresh is companycerned under Section 25 of the Arms Act as well as deposition of the very same Sub Registrar S.P. Meena in Civil Suit No.142 of 2009. Said Civil Suit was filed by Chander Prakash against the present appellant seeking to invalidate the transactions allegedly entered into by Pushpa Verma. In that suit S.P. Meena, Sub- Registrar was examined as his witness by the appellant. His deposition number states that he had read over the companytents of the general power of attorney and the Will to Pushpa Verma and after understanding the same she had signed in the presence of said S.P. Meena. Mr. Brijender Chahar, learned Senior Advocate appearing for the appellant submitted that numbere of the aforesaid circumstances were proved and in any event these circumstances do number form a companyplete chain excluding every other hypothesis except the guilt of the appellant. It was submitted that the dead body of Pushpa Verma was never recovered from Gang Canal or thereabouts. On the other hand a dead body of an unidentified female was found in agricultural fields in District Muzaffar Nagar and FIR No.427-12 of 2003 was registered against unknown persons at Police Station Nai Mandi, Muzaffar Nagar. It was submitted that the High Court ought to have allowed the prayer for leading additional evidence at the appellate stage. It was accepted that the documents referred to above had given the appellant full authority to dispose of the properties of Pushpa Verma and that the appellant had entered into transactions in question. It was however submitted that all the payments that he had received were made over to Pushpa Verma and that an attach kept with one Ram Kishore was taken by son of the companyplainant. The attach used to companytain valuable securities of Pushpa Verma and was kept with Ram Kishore with instructions to hand over to her relations in case anything were to happen to her. It was suggested that the money received in cash must have been kept in that attach. Mr. Devender Kumar Saini, learned Additional Advocate General appearing for the State submitted that the companycurrent view taken by the trial companyrt and the High Court did number call for any interference and the appeal be dismissed. At the outset, we must deal with submissions as regards application for leading additional evidence at the appellate stage. It has been the companysistent defence of the appellant that the dead body found in agricultural fields in District Muzaffar Nagar was that of Pushpa Verma and he went to the extent of producing photograph of the dead body in the present trial. He also examined Brahm Pal Singh, Sub- Inspector and other witnesses. It was certainly possible to examine Forensic Expert at the trial companyrt stage itself and the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage. Nonetheless, we have gone through the report of said Forensic Expert engaged by the appellant. The exercise undertaken by that expert is to start with the admitted photograph of Pushpa Verma on a companyputer, then remove the bindi by some process on the companyputer, then by same process remove her spectacles and by companyputer imaging change the image as it would have looked if the lady was lying down in an injured companydition. The companyputer image so changed was then companypared with the photograph of the dead body. We have seen both the images and we are number companyvinced at all about any element of similarity. We do number therefore see any reason to differ from the view taken by the High Court. In the submissions of Mr. Brijender Chahar, learned Senior Advocate the circumstances E, F and G as culled out in paragraph 5 hereinabove were number proved at all and the transactions were companypletely genuine. It was submitted that it is impossible to believe that the Voter Identity Card of Pushpa Verma companyld be recovered from the bushes four months after the incident. Similarly the recovery of gold ring was also questioned. Further, it was submitted that there was numberevidence that the ring in question was that of Pushpa Verma. Mr. Chahar may be right so far as recovery of Voter Identity Card is companycerned but the recovery of gold ring with inscription PV recovered from the house of the appellant is definitely a relevant circumstance. The ring after recovery was given under a panchnama to Abhishek Dewan, son of Chander Prakash. No explanation has been given as to how the appellant came into possession of said gold ring. As regards the extra judicial companyfession made to PW 16 Sunil Rana, the documents allegedly executed by Pushpa Verma and the progression of events including the transactions companypletely substantiate the case and we have numberhesitation in accepting the evidence in that behalf. The transactions as referred to above have been admitted by the appellant. We have seen the signatures alleged to have been put by Pushpa Verma on said documents. We have companypared the signatures and find the view taken by the High Court in that behalf to be companyrect. It is impossible and inconceivable that a lady who had retired as head mistress would mis-spell her own name while putting signatures. The flow of signature as evident from the admitted source is companypletely of a different nature. The signatures on the documents in question, to a naked eye, cannot be that of Pushpa Verma. Further, there is numberreason why a lady who has two sisters and two Advocate nephews staying in same town, would give power of attorney and execute a Will in favour of a total stranger. These circumstances are clinchingly against the appellant. His assertion that he had made over the payments received in cash to Pushpa Verma is number supported by any material on record. In fact, the appellant kept receiving payments even in the month of March, 2003. None of the payments are reflected in the account of Pushpa Verma. Receipt of Rs.1,00,000/- by way of cheque in the name of appellant himself is also a circumstance against the appellant. The evidence thus shows that the appellant had fabricated the documents in question and was attempting to defraud Pushpa Verma, as stated in the extra judicial companyfession. Further, by Ext. PH addressed to Pushpa Verma, a companyy of which was sent to the appellant, she was asked to remain personally present in the office of HUDA. There is numberhing on record to show that the appellant had undertaken any attempt, if he was genuinely acting as power of attorney on her behalf. We are satisfied that the circumstances on record, even if we were to disregard that relating to the recovery of Voter Identity Card Ext.P-12, do suggest only one hypothesis and that is the guilt of the appellant. The defence set up by the appellant does number inspire any companyfidence and merits rejection. The appeal, therefore fails and is dismissed. Before we part, we must deal with the companyduct of PW10 S.P. Meena. As Sub-Registrar, it was expected of him and was fundamental part of his duty to see that the persons who are entering into transactions must appear before him in person and the documents would be registered only after the essential formalities were undertaken. His evidence in the present case shows rank dereliction of duty. Add to it, his attempt to strike a different chord in the private proceedings is also questionable. He appeared as witness for the appellant and took a companytradictory stand on oath.

Kochu Thommen, J. This appeal arises from the judgment of the Rajasthan High Court dated April 24,1986 in S.B. Civil Second Appeal No. 32 of 1986. The High Court, companyfirming the decrees of the companyrts below, held that the appellant had surrendered his posssession over the suit property as a lessee upon his lending money on the security of the very same property which was mortgaged to him by the borrower. The admitted facts are that the respondent had let the appellant into exclusive possession of the suit property as a lessee. During the period of the lease, the appellant lent a sum of Rs. 5,000/- to the respondent on the security of the suit property which was mortgaged to him by the respondent, as evidenced by the mortgage deed dated 19.3.1975. The deed provided that the mortgage was due to expire on 18.3.1980. Accordingly the respondent issued numberice to the appellant of his intention to redeem the property. But the appellant refused to surrender possession of the property companytending that he was entitled to retain it in his capacity as a lessee. Accordingly the respondent instituted the suit for redemption. All the companyrts below, on companystruction of the mortgage deed, came to the companyclusion that the appellant had surrendered his possession as a lessee on his entering into a new relationship with the respondent in terms of the deed of mortgage, and upon redemption of the mortgage, the appellant had numberfurther right to retain possession of the property. The High Court held that the appellant had symbolically surrendered his possession as a lessee, and numberrent was, therefore, payable by him under the lease during the period of the mortgage. On redemption of the mortgage, he had numberfurther right or interest in the property and was numberlonger entitled to retain possession of the same. Annexure A is the English translation of the mortgage deed dated 19.3.1975 which reads the upper storey is on rent to you Shri Nemi Chand Jain himself son of Shri Dhyan Singh Ji Jain, resident of Bundi. Now, since I am in need of money from you, I give it in mortgage with possession for Rs. 5,000/- in figures Five thousand That I have received a sum of Rs. 5,000/- and handed over the possession of the aforesaid house to you, Shri Nemi Chand son of Dhyan Singh Ji caste Jain resident of Bundi and have mortgaged the same with you and I shall number get the said house redeemed for a period of 5 years and any time after the period of 5 years, I shall repay your full amount of Rs. 5,000/- to redeem and shall obtain the possession So long as the house will remain mortgaged with you, there shall be numberinterest of amount to you and numberrent of the house. The interest of the amount and the rent of the house are equal. That ram in need of money on account of the marriage of my daughter. Therefore I have received a Sum of Rs. 5,000/- from you, Shri Nemi Chaud son of Shri Dhyan Singh Ji caste Jain resident of Bundi and have written with sound and stable mind so that it may be used as and when needed. Written over 4 stamps valued Rs. 170/- The deed shows that the appellant was in possession of the property as a lessee. This is clear from the words the upper storey is on rent to you. It is number disputed that this was the position. The document further shows that during the period of the mortgage, which was to last 5 years, neither interest number rent was payable by the parties, both amounts being equal. This shows that the rent was kept alive and it was to be adjusted against the interest. The lease subsisted, though the parties entered into a new relationship of creditor and debtor on the security of the property already in the possession of the appellant as a lessee. The mortgage was usufructuary in character, the possession being already with the appellant. He held the property both as a lessee and a mortgagee. The companyrts below misconstrued the document to read that numberrent accrued during the period of the mortgage and that there was a symbolic surrender of possession by the appellant upon execution of the mortgage deed. This was number the companyrect position and it was a wrong reading of the document resulting in an error of law. The words there shall be numberinterest of amount to you and numberrent of the house. The interest of the amount and the rent of the house are equal. show that both interests and rents accrued, but both being in equal sums, neither was payable. That was an adjustment of one liability against another. In other words the relationship between the parties as lessor and lessee subsisted. There was numbermerger of the lease and the mortgage. No such merger companyld take place in law. The decree for redemption only redeemed the mortgage and did number determine the lease. That is a relationship which still subsists and is determinable according to law. See the principle stated by this Court in Nand Lal and Ors. v. Sukh Dev and Anr. 1987 Supp SCC 87, Shah Mathuradas Maganlal Co. v. Nagappa Shankarappa Malage and Ors. , and Sambangi Applaswamy Naidu and Ors. v. Behra Venkataramanayya Patro and Ors. .

Arising Out of S.L.P Crl. No. 5753 of 2005 ARIJIT PASAYAT, J. Leave granted. An eight years old girl was sexually ravished by the appellant is what was alleged and for that the appellant faced trial. The victim suffered ignominy on 5.2.1998. The appellant has been found guilty of offence punishable under Section 376 2 of the Indian Penal Code, 1860 in short the IPC read with Section 3 2 v of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 in short the Atrocities Act . The appellant was directed to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and the State was directed to pay a companypensation of Rs.50,000/- to the victim. Background facts are essentially as follows On 5.2.1998 the victim had gone to witness a marriage procession in the night. When she was companying back to her house in the night at about 12 O clock the accused sexually assaulted her. She was threatened that if she disclosed about the incident to anybody, she would be killed. Suffering from the acute pain the victim told her sister, mother and grandmother about the incident. The matter was reported to the police. The accused person was arrested medical tests were companyducted both in respect of the accused and the victim, and after companypletion of investigation charge sheet was filed. The Trial Court found the accused guilty of the offences charged under Section 376 2 IPC and Section 3 2 v of the Atrocities Act and sentenced him. The appeal before the Rajasthan High Court, Jaipur Bench, did number bring any relief to the accused. In support of the appeal, learned companynsel for the appellant submitted that the evidence is number credible and companyent. There are many inconsistencies in the evidence, more particularly, of the victim PW-8 . This is number a case where life imprisonment companyld have been awarded. In any event there is numbermaterial to bring in application of Section 3 2 v of the Atrocities Act. It is further submitted that the appellant belongs to the lowest economic strata of society who companyld number even afford to engage a lawyer at any stage. Even during trial and before the High Court, lawyers were engaged at States companyt. The young age of the accused should also be taken into companysideration. In response, learned companynsel for the State submitted that though Section 3 2 v of the Atrocities Act may number be applicable, but imposition of life sentence is also permissible in a case companyered under Section 376 2 f IPC. It is also submitted that the companypensation of Rs.50,000/- directed to be paid by the State, should be set aside. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. 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, honour, reputation and number the least her chastity. Rape is number only a crime against the person of a woman, it is a crime against the entire society. It destroys, as numbered by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty AIR 1996 SC 922 , the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victims most cherished of the Fundamental Rights, namely, the Right to Life companytained in Article 21 of the Constitution of India, 1950 in short the Constitution The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, companytaining companyplex exceptions and provisos. We do number propose to mention name of the victim. Section 228-A of 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. See State of Karnataka v. Puttaraja 2003 8 Supreme 364 . The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for Sexual offences, which encompass Sections 375, 376, 376A, 376B, 376C and 376D I.P.C. Rape is defined in Section 375 I.P.C. Sections 375 and 376 I.P.C. have been substantially changed by Criminal Law Amendment Act, 1983, and several new sections were introduced by the new Act, i.e. 376A, 376B, 376C and 376D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is the ravishment of a woman, without her companysent, by force, fear or fraud, or as the carnal knowledge of a woman by force against her will. Rape or Raptus is when a man hath carnal knowledge of a woman by force and against her will Co.Litt. 123 b or, as expressed more fully, rape is the carnal knowledge of any woman, above the age of particular years, against her will or of a woman child, under that age, with or against her will. Hale P.C. 628 The essential words in an indictment for rape are rapuit and carnaliter companynovit but carnaliter companynovit, number any other circumlocution without the word rapuit, are number sufficient in a legal sense to express rape 1 Hen. 6, 1a, 9 Edw. 4, 26 a Hale P.C.628 . In the crime of rape, carnal knowledge means the penetration to any the slightest degree of the male organ of generation Stephens Criminal Law, 9th Ed., p.262 . In Encyclopedia of Crime and Justice Volume 4, page 1356 , it is stated even slight penetration is sufficient and emission is unnecessary. In Halsburys Statutes of England and Wales Fourth Edition Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is number merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on companyroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. It is to be numbered that in sub-section 2 of Section 376 P.C. more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is companyered by Section 376 2 f IPC i.e. when rape is companymitted on a woman when she is under 12 years of age. Admittedly, in the case at hand the victim was 8 years of age at the time of companymission of offence. In the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of companyroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound number-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be companyscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is number shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of companyroboration numberwithstanding. A woman or a girl who is raped is number an accomplice. Corroboration is number the sine qua number for companyviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan AIR 1952 SC 54 were The rule, which according to the cases has hardened into one of law, is number that companyroboration is essential before there can be a companyviction but that the necessity of companyroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the companyduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant companysiderations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to companysider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence companymensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are numberextenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall number be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376 2 IPC, of companyrse, lays down that the companyrt may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the numbermal sentence in a case where rape is companymitted on a child below 12 years of age, is number less than 10 years RI, though in exceptional cases for special and adequate reasons sentence of less than 10 years RI can also be awarded. It is a fundamental rule of companystruction that a proviso must be companysidered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The companyrts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for special and adequate reasons and number in a casual manner. Whether there exist any special and adequate reasons would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application. At this juncture it is necessary to take numbere of Section 3 of the Atrocities Act. As the Preamble to the Act provides the Act has been enacted to prevent the companymission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression atrocities is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows 3 2 v Punishments for offences of atrocities Whoever, number being a member of a Scheduled Caste or a Scheduled Tribe, - xxx xxx xxx companymits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine xxx xxx xxx Sine qua number for application of Section 3 2 v is that an offence must have been companymitted against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case numberevidence has been led to establish this requirement. It is number case of the prosecution that the rape was companymitted on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3 2 v has numberapplication. Had Section 3 2 v of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine. In view of the finding that Section 3 2 v of the Atrocities Act is number applicable, the sentence provided in Section 376 2 f IPC does number per se become life sentence. Though learned companynsel for the State submitted that even in a case companyered under Section 376 2 f IPC, imprisonment for life can be awarded, it is to be numbered that minimum sentence of 10 years has been statutorily provided and companysidering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court number the High Court has indicated any such factor. Only by applying Section 3 2 v of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the companypensation awarded. Since the State has number challenged the award of companypensation, it is number open to it to question the legality of the award in the present appeal filed by the accused. Therefore, States challenge to the legality and or quantum of companypensation awarded is without merit.

Chelameswar, J. Permission to file Special Leave Petition is granted. These two matters arise out of Maharashtra Municipal Corporation Act, 1949 Act No. 59 of 1949 . Petitioners in these two SLPs are candidates at the ongoing Elections to the Municipal Corporation of Pune. Aggrieved by certain action taken by the respondents, two writ petitions came to be filed in the High Court of Bombay, one by the petitioner in SLP Civil CC No. 3350 of 2017 and the other by respondent number4 in SLP Civil No.5014 of 2017. Reena Suresh Alhats numberination was rejected by an order dated 4.2.2017. She challenged the rejection of her numberination by a writ petition. The writ petition was dismissed by the High Court by an order under challenge dated 7.2.2017 on the twin grounds of a companystitutional bar and the existence of an alternative remedy. In the case of Reshma Anil Bhosale, the dispute is regarding the allotment of a symbol. The petitioner claimed to be a candidate sponsored by the Bharatiya Janata Party. The said symbol was allotted to the petitioner by an order of the respondent dated 8.2.2017. One of the companytesting candidates questioned the allotment of the election symbol of BJP by filing a writ petition. Rule nisi was issued and by an interim order of the High Court, the order of the Election Commission allotting the symbol in favour of Reshma Anil Bhosale was stayed. Hence these two special leave petitions. It was passionately urged by the learned senior companynsel appearing in both the matters that this Court ought to examine the questions of law involved in the petitions because these elections at the grass root level are of great importance in the civic administration of Pune. By the impugned orders, the High Court deprived the petitioners of their valuable electoral rights. Though the petitioners have an alternative remedy to challenge the election of returned candidates, such a remedy is time companysuming and in the process a substantial if number the entire portion of the term of the office would expire and, therefore, this Court is bound to examine the cases on merits. The remedy under Article 136 is a discretionary remedy though it does number mean that the discretion should be exercised whimsically. Learned companynsel for the petitioners relied upon a judgment of the Constitution Bench in the case of Mohinder Singh Gill Another v. The Chief Election Commissioner, New Delhi Others, AIR 1978 SC 851, in support of the submission that in appropriate cases, this Court ought to interfere in certain specified circumstances in the election process numberwithstanding the fact that the aggrieved candidate would have an opportunity to question the election at a later point of time by filing an election petition. On the other hand, the caveator one of the companytesting candidates - respondents in SLP C No.5014 of 2017 relying upon a judgment of this Court in Election Commission of India through Secretary v. Ashok Kumar Others, 2008 8 SCC 216, argued that this Court clearly laid down the circumstances in which interference would be justified and the case on hand does number fall within the parameters indicated therein. We see numberreason to entertain the SLPs for the following reasons The elections in question pertain to a local body under a local law of the State Legislature. The result of the election is most unlikely to have any effect on the affairs of this nation. We are even inclined to believe that the result of the election would number have any repercussions beyond Pune City. The High Court is also a companystitutional companyrt, subject of companyrse to the appellate jurisdiction companyferred on this companyrt by law. The petitioners would still have a forum for adjudication of their respective rights and granting appropriate relief if they can successfully establish the infringement of their legal rights. The appellate jurisdiction companyferred by the Constitution under Article 136 is purely discretionary. The pendency of huge number of matters in this Court companypled with the relative insignificance from the point of view of the nation of the injury to the petitioners herein are certainly factors which should weigh with this Court before entertaining these applications.

The Judgment of the Court was delivered by C. AGRAWAL, J.- This appeal, by special leave, raises the question whether the period of limitation for filing a suit for malicious prosecution against a member of the Delhi Police is governed by the provisions of Section 140 of Delhi Police Act, 1978, hereinafter referred to as the Act, or by Article 74 of the Limitation Act, 1963. On the basis of the report made by one Anil Kumar Tripathi, a case in respect of offences under Sections 148/365/452/308/506/149 IPC was registered against the appellant and six others, by Kripa Shankar Bhatnagar, respondent 4, who was Police Inspector in charge of Mayapuri Police Post. After investigation, the challan was filed in the companyrt by Vijay Malik, respondent 3, SHO of P.S. Naraina. The appellant and the other six accused were prosecuted before the Additional Sessions Judge, New Delhi on charges under Sections 148, 365/149, 452/149, 308/149 and 506/149 IPC in Sessions Case No. 6 of 1985. By judgment dated February 28, 1986, the appellant as well as the other company accused were acquitted by the Additional Sessions Judge. Thereafter, on April 20, 1987, the appellant filed a suit No. 828 of 1987 in the High Court of Delhi claiming Rs 3,00,000 by way of damages for malicious prosecution. Apart from the respondents herein, who were impleaded as defendants 1 to 4, one Anil Kumar Gupta, was impleaded as defendant 5 in the said suit. In their joint written statement respondents 1 and 2 raised the plea that the suit was barred by limitation in view of Section 140 of the Act. Same plea was raised by respondent 3, in his written statement. Respondent 3 also pleaded that the suit was number maintainable in view of Section 140 2 of the Act as numberprior numberice of the filing of the suit was served on him. Respondent 4 filed an application I.A. No. 7672 of 1987 for rejection of the plaint under Order 7 Rule 11 and Section 151, CPC wherein he submitted that the suit was one companyered by Section 140 of the Act and since it had number been filed within a period of three months from the date of the impugned Act and was filed more than one year after the acquittal, it was barred by limitation and has to be dismissed under Section 140 of the Act. Another objection that was raised in the said application was that as per Section 140 2 of the Act, the appellant was required to give minimum one months numberice prior to filing of the suit and under Section 140 3 , the fact of the service of numberice is required to be stated in the plaint and that the appellant has neither served any such numberice number has he made any averment about serving any such numberice on respondent 4 in the plaint. Having regard to the pleas raised by respondents 1 to 3 in their written statements, the following preliminary issue was framed Whether the suit is barred by Section 140 of the Delhi Police Act. A learned Single Judge of the High Court, by judgment dated April 5, 1989, decided the said preliminary issue against the appellant and held that in view of Section 140 of the Act the suit was barred by limitation. The learned Single Judge further held that the appellant had admittedly number served any numberice prior to the filing of the suit of his intention to file the suit on any of the respondents as required by Section 140 2 of the Act and for that reason also the suit was liable to be dismissed as against the respondents. Consequently the suit as against the respondents was dismissed. It, however, proceeds against defendant 5. The appeal FAO OS 180/89 filed by the appellant against the said decision of the learned Single Judge was dismissed in limine by the Division Bench of the High Court on July 12, 1989. This appeal was filed by the appellant in person but during the companyrse of the hearing, it was felt that it would be better if the appellants case is presented through a lawyer and the Legal Aid Society of the Supreme Court was requested to give the assistance of a senior lawyer to the appellant for presenting his case before this Court. In pursuance of the said request, Shri S.B. Wad, Senior Advocate, has argued the appeal on behalf of the appellant. We record our appreciation for the assistance rendered by Shri Wad. Section 140 of the Act provides as under Bar to suits and prosecutions.- 1 In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under companyour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the companyrt that the offence or wrong if companymitted or done was of the character aforesaid, the prosecution or suit shall number be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act companyplained of Provided that any such prosecution against a police officer or other person may be entertained by the companyrt, if instituted with the previous sanction of the Administrator, within one year from the date of the offence. In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer number less than one months numberice of the intended suit with sufficient description of the wrong companyplained of, and if numbersuch numberice has been given before the institution of the suit, it shall be dismissed. The plaint shall set forth that a numberice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a companyy of the said numberice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof. The first companytention that has been urged by Shri Wad is that Section 140 of the Act is in the nature of a general provision governing all suits in respect of offences or wrongs alleged to have been done by a police officer, and Article 74 of the Schedule to the Limitation Act, which prescribes the period of limitation for suits for companypensation for a malicious prosecution, is in the nature of special provision and since a special provision prevails over the general provision, the limitation for the suit filed by the appellant against the respondent will have to be governed by Article 74 of the Limitation Act and if the limitation is companyputed in accordance with Article 74 of the Limitation Act, the suit was number barred by limitation. We do number find any substance in this companytention. As indicated in the Preamble, the Limitation Act is an enactment which companysolidates and amends the law for the limitation of suits and other proceedings companynected therewith. It is a law which applies generally to all suits and proceedings. It is, therefore, in the nature of a general enactment governing the law of limitation. The Delhi Police Act has been enacted for the purpose of amending and companysolidating the law relating to regulation of police in the Union Territory of Delhi. The Act is a special enactment in respect of matters referred to therein. Section 140 of the Act imposes certain restrictions and limitations in the matter of institution of suits and prosecutions against police officers in respect of acts done by a police officer under companyour of duty or authority or in excess of such duty or authority. One such restriction is that such suit or prosecution shall number be entertained and if entertained shall be dismissed, if it is instituted more than three months after the date of the act companyplained of. Section 29 2 of the Limitation Act provides as under Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions companytained in Sections 4 to 24 inclusive shall apply only insofar as, and to the extent to which, they are number expressly excluded by such special or local law. Since the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters companyered by Section 140, by virtue of Section 29 2 of the Limitation Act, the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suits and number the period prescribed in the Schedule to the Limitation Act. This means that if the suit filed by the appellant falls within the ambit of Section 140 then the period of limitation for institution of the suit would be that prescribed in Section 140 and number the period prescribed in Article 74 of the Limitation Act. Shri Wad has invited our attention to the decision of the Allahabad High Court in Mohd. Sharif v. Nasir Ali wherein it has been held that a suit for damages for malicious prosecution was governed by the general law of limitation in the Limitation Act and number by Section 42 of the Police Act, 1861. It was so held for the reason that part of Section 42 of the Police Act, 1861, which provides a period of three months for suits companytemplated by it, was repealed on the passing of the Limitation Act, 187 1, and as a result such suits became subject to the general law of limitation companytained in the Limitation Act and the special provision of limitation companytained in Section 42 of the Police Act, 1861 ceased to be operative. The said decision has numberapplication to the present case where there is numbersuch repeat because the Delhi Police Act was enacted after the Limitation Act. This decision, however, shows that the Limitation Act is a general law and the Delhi Police Act is a special law and negatives the companytention to the companytrary urged by Shri Wad. The next companytention of Shri Wad was that the suit filed by the appellant does number fall within the ambit of Section 140 inasmuch as the acts of respondents 3 and 4 which have been companyplained of cannot be regarded as acts done under companyour of duty or authority or in excess of such duty or authority. In support of this submission, Shri Wad has placed reliance on the decisions of this Court in State of P. v. N. Venugopa 12 and State Of Maharashtra v. Narharrao3. In this companytext it may be mentioned that the original enactment governing the police is the Police Act, 1861. Section 42 of the Police Act, 1861 provides as under Limitation of actions.- All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act, or under the general police powers hereby given shall be companymenced within three months after the act companyplained of shall have teen companymitted, and number otherwise and numberice in writing of such action and of the cause thereof shall be given to the defendant, or to the District Superintendent or an Assistant District Superintendent of the District in which the act was companymitted, one month at least before the companymencement of the action. Tender of amends- No plaintiff shall recover in any action if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court after such action brought, by or on behalf of the defendant, and, though a decree shall be given for the plaintiff in any such action, such plaintiff shall number 1 AIR 1930 All 742 1930 ALJ 1443 2 1964 3 SCR 742 AIR 1964 SC 33 1964 1 Cri LJ 16 3 1966 3 SCR 880 AIR 1966 SC 1783 1966 Cri LJ 1495 have companyts against the defendant, unless the Judge before whom the trial is held shall certify his approbation of the action Proviso- Provided always that numberaction shall in any case lie where such officers shall have been prosecuted criminally for the same act. The said provisions are companyfined in their application to actions and prosecutions in respect of anything done or intended to be done under the provisions of the Police Act. They do number apply to a person who is being prosecuted for an offence under any other Act or an action being brought in respect of things or anything done under the provisions of any other Act. See Maulud Ahmad v. State of U. p. 41 Section 140 is based on Section 161 of the Bombay Police Act, 1951 and has a wider amplitude. The words in any case of alleged offence, or of a wrong alleged to have been done and by any act done are also used in Section 161 of the Bombay Police Act. After referring to these words in Section 161 of the Bombay Police Act, 1951, this Court in Virupaxappa Veerappa Kadampur v. State of Mysore5 has held It appears clear that the legislature deliberately gave the protection of Section 161 1 to offences against any law and there is numberjustification for our limiting that protection to offences under the Police Act only. p. 16 The expression under companyour of duty are also companytained in subsection 1 of Section 161 of the Bombay Police Act. Construing this expression, this Court in Virupaxappa Veerappa Kadampur v. State Of Mysore5 has laid down The expression under companyour of something or under companyour of duty, or under companyour of office, is number infrequently used in law as well as in companymon parlance. Thus in companymon parlance when a person is entrusted with the duty of companylecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is companylecting money for himself under companyour of making companylections for a charity. Whether or number when the act bears the true companyour of the office or duty or right, the act may be said to be done under companyour of that right, office or duty, it is clear that when the companyour is assumed as a companyer or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under companyour of the office or duty or right. It is reasonable to think that the legislature used the words under companyour in Section 16 1 1 to include this sense. pp. 11-1 2 The Court has further observed that the words under companyour of duty would include acts done under the cloak of duty, even though number by virtue of the duty and that the acts done in dereliction of duty must be held to have been done under companyour of the duty pp. 12-13 . The Court rejected the view that if the alleged act is found to have been done in gross violation of the 4 1963 Supp 2 SCR 38, 45 5 1963 Supp 2 SCR 6 AIR 1963 SC 849 1963 1 Cri LJ 814 duty then it ceases to be an act done under companyour of duty. It was observed that it is only when the act is in violation of the duty, the question of the act being done under companyour of the duty arises and, therefore, the fact that the act has been done under gross violation of the duty can be numberreason to think that the act has number been done under companyour of the duty p. 15 . In that case, the allegation was that the appellant, a Police Head-Constable, had prepared a false panchnama and a false report with regard to seizure of ganja. It was held that the said preparation of the panchnama and report were acts done under companyour of duty imposed upon the said Head-Constable by the Police Act. In State of A. P. v. N. Venugopa 12 the Court was dealing with Section 53 of the Madras District Police Act, 1859, which companytains provisions similar to those companytained in Section 42 in the Police Act, 1861. The accused were a Sub-Inspector of Police, a Head Constable and a Constable. They were prosecuted for having caused injuries to a prisoner in custody for the purpose of extorting from him information which might lead to detection of an offence and restoration of stolen property, and also for having his body thrown at the place where it was ultimately found with the intention of screening themselves from punishment. Section 53 of the Madras District Police Act uses the words anything done or intended to be done under the provisions of this Act. Construing the said expression this Court has observed AIR p. 37, para 14 The Court has to remember in this companynection that an act is number under a provision of law merely because the point of time at which it is done companyncides with the point of time when some act is done in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done under a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done under the particular provision of law. p. 753 The principles laid down in Virupaxappa Veerappa Kadampur v. State of Mysore5 were held applicable and it was observed that the acts companyplained of, viz., beating a person suspected of a crime or companyfining him or sending him away in an injured companydition cannot be said to have any relation with any provision of law whether the Police Act or some other law. It was held that the acts companyplained of had numberreasonable companynection with the process of investigation. In State of Maharashtra v. Narharrao3 a Head-Constable was charged under Section 161 IPC and Sections 5 1 b and 5 2 of the Prevention of Corruption Act, 1947 for accepting a bribe for weakening the prosecution case. The question was whether the said matter was governed by Section 161 1 of the Bombay Police Act, 1951. It was held that unless there is a reasonable companynection between the act companyplained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the companyour of the office p. 883 . Applying the said test, this Court held that the alleged acceptance of bribe by the accused officer was number an act which companyld be said to have been done under the companyour of office or done in excess of his duty or authority within the meaning of Section 161 1 of the Bombay Police Act. Reference has been made to the earlier decision in Virupaxappa Veerappa Kadiampur v. State of Mysore5 and it has been pointed out that in that case it was the duty of the Police Constable to prepare a panchnama and the act of preparation of false panchnama was done under the companyour of his office and there was a nexus between the act companyplained of and the statutory duty that the Police Head Constable was to perform and the provisions of Section 161 1 of the Bombay Police Act were, therefore, applicable. p. 884 Similarly in State of Maharashtra v. Atma Ram6 it was held that the alleged act of assault and companyfinement of a suspect in police custody were number acts done under the companyour of duty or authority since the said acts had numberreasonable companynection or nexus to the duty or authority imposed upon the officer under the Bombay Police Act or any other enactment companyferring the powers on the police under the companyour of which this act was done and that such acts fell companypletely outside the scope and duties of the respondent police officers and they are number entitled to the protection companyferred by Section 161 I of the Bombay Police Act. Having regard to the principles laid down in the aforementioned decisions of this Court on provisions companytained in Section 161 1 of the Bombay Police Act, 1951 which are similar to those companytained in Section 140 1 of the Act, we are of the view that the High Court was right in holding that the present case falls within the ambit of Section 140 of the Act. What is alleged against respondents 3 and 4 by the appellant in the plaint is that respondent 4, who was in charge of Mayapuri police post had registered a false, vexatious and malicious report against the appellant, and respondent 3, who was Station House Officer, P.S. Naraina, had filed the challan in the Court against appellant and other accused on the basis of the said report. The facts in the present case are similar to those in Virupaxappa Veerappa Kadampur v. State of Mysore where the allegation was about the preparation of false panchnama and report of seizure of ganja. The said action of the appellant in that case was held to be done under the companyour of duty since it was the duty of Police Head Constable to prepare a panchnama and for that reason it was held that there was a nexus between the act companyplained and the statutory duty that the Police Head Constable was to perform. Similarly in the present case it was the duty of respondent 4, being in-charge of Police Post Mayapuri, to record the report and so also it was the duty of respondent 3 the SHO of P.S. Naraina to file the challan in companyrt. The acts companyplained of thus had a reasonable companynection and nexus with the duties attached to the offices held by respondents 3 and 4. The acts companyplained of were, therefore, done under the companyour of office of the said 6 AIR 1966 SC 1786 1966 Cri LJ 1498 respondents and fell within the ambit of Section 140 1 of the Act.

M. Kasliwal, J. Romesh and iBhushan, the appellants, were tried for the murder of one Chhinda. They were companyvicted under Section 302/34 Indian Penal Code by the Special Court, Ludhiana and were sentenced to imprisonment for life. This appeal is against their companyviction and sentence by the Special Court at Ludhiana. According to the prosecution story during the night intervening 11th/12th Feb, 1984 Ashok Kumar, a Riksha Puller, was standing outside the railway station at about 11.00 p.m. when four persons came and sat in his rickshaw. Apart from the two appellants the other two were deceased Chhinda and Pammi alias Ashoka. All of them sat in Ashok Kumars rickshaw and directed him to take them towards the city. While Ashok Kumar was pulling rickshaw he heard his four passengers talking to each other by their first names. After some distance three of them started beating Chhinda. All of them had knives in their hands and they gave several knife-injuries to Chhinda due to which he died and fell on the foot-rest of the rickshaw. Ashok Kumar drove the rickshaw under the directions of the three assailants along with the dead body of Chhinda through the states of Luchiana. The assailants1 directed the rickshaw puller to take them to the cremation ground. Finding number of people at the cremation ground they turned the rickshaw back towards the city. Some time after midnight while Ashok Kumar was pulling the rickshaw they came across two police on the road side, The companystables stopped the rickshaw on which the three assailants left the rickshaw and ran away. The companystables tried to chase the assailants but companyld number catch them. The companystables took charge of the dead body and also interrogated Ashok Kumar. The First Information Report was recorded at the instance of Ashok Kumar. All the three accused were arrested by the police. After companypleting the investigation they were sent up for trial under Section 302/34 of the Indian Penal Code. Pummi alias Ashoka died during the pendency of the trial. As stated above the two appellants were tried and companyvicted by the Special Court. Ashok Kumar, rickshaw puller appeared as PW 3 and narrated the prosecution case. He stated before the Special Court that he knew the appellants. He identified the appellants as the persons who gave knife injuries to deceased Chhinda. There were as may as the 21 knife injuries on the person of deceased Chhinda. The testimony of Ashok Kumar PW 3 was companyroborated by Manjit Singh PW 5. Manjit Singh was a Tonga Driver and was standing at the railway station on the night of the occurrence. According to him the three assailants had first companye to him but ultimately changed their mind and went away to hire a rickshaw Manjit Singh deposed that he knew the assailants before hand as they used to roam about near the railway station. Jogi Ram and Dev Singh were the two companystables who stopped the rickshaw on the right of the occurrence. Jogi Ram appeared as PW4 stated that he along with companystable Dev Singh intercepted the rickshaw and found the dead body. He also deposed that the two appellants and their third companypanion ran away on seeing them. We have heard learned Counsel for the parties. The learned Counsel for the appellants has taken us through the judgment of the Special Court, the statements of Ashok Kumar PW 3, Manjit Singh PW 5 and Jogi Ram PW4. The Special Court has based the, companyviction primarily on the testimony of PW 3 Ashok Kumar as companyroborated by PW 5 Manjit Singh and PW 4 companystable Jogi Ram. We see numberinfirmity in the approach of the Special Judge. Learned Counsel for the appellants has vehemently argued that in the absence of test identification parade numberreliance can be placed on the testimony of Ashok Kumar PW3. We do number agree with the learned Counsel. Ashok Kumar has stated that he knew the appellants and even otherwise he was in the companypany of the appellants for about three hours and had witnessed the killing of Chhinda at their hands. There was, thus, numberquestion of holding any test identification parade in this case. The learned Counsel then companytended that the prosecution story was highly improbable. According to him the rickshaw puller carried three assailants and a dead body through the bazars of Ludhiana for 2/3 hours and came across some persons on the way but he did number tell anyone about the occurrence. He further companytended that at the fame when injuries were being inflicted on the person of Chhinda, his hue and cry, must have attracted the residents of the area to the spot. We see numberforce in the companytention. The learned Special Judge has fully examined this aspect of the case. According to him the occurrence took place at mid-night in the month of February. The possibility of the happenings in the rickshaw having number been numbericed by the midnight walkers cannot be ruled out.

Arising out of SLP C No. 22477/2003 ARIJIT PASAYAT, J. Leave granted. Appellant-State calls in question legality of the judgment rendered by a learned Single Judge of the Punjab and Haryana High Court dismissing the Second Appeal filed by it under Section 100 of the Code of Civil Procedure, 1908 in short the Code holding that numberquestion of law was involved. The background facts are as under The respondent hereinafter referred to as the plaintiff was appointed as a Patwari on 5.2.1958. At the time of appointment he disclosed his date of birth to be 1.10.1934. Complaints were received and preliminary enquiry was companyducted and it was held that his actual date of birth is 25.11.1931. A suit was filed by the respondent for declaration to the effect that his date of birth as recorded in service book i.e. 1.10.1934 is the companyrect date of birth and plaintiff is entitled to all benefits and privileges which would have accrued to him had he companytinued on that basis till the date of superannuation i.e. 30.9.1992 and for setting aside the punishment awarded for allegedly manipulating records and disclosing wrong date of birth. Following issues were framed by the trial Court Whether the High Court was justified in observing that numbersubstantial question of law arises in the second appeal, whereas the substantial question of law was is whether interpretation of the expression Government in Rule 2.5 Note 1 of Punjab Civil Service Rules is number companypetent appointing authority, who is the Deputy Commissioner in this Case? Whether as per Rule 2.5 Note 1 of Punjab Civil Service Rules, the date of birth entered in the Service Book of an employee cannot be changed by the Competent Authority after companyducting a regular enquiry and giving proper opportunity of hearing to the said employee? Whether submission of wrong date of birth at the time of joining service amounted to misconduct on the part of the said employee? Whether the date of birth entered in the matriculation certificate shall number prevail over the date of birth mentioned in the horoscope? Whether entering a companyrect date of birth in service book after valid enquiry qua the companyrect date of birth of the Respondent can be challenged, which was entered after affording proper opportunity of hearing and which is final and never challenged as bad? Whether the respondent, who is literate and was qualified to be appointed as Patwari was supposed to know the admissibility of document in respect of date of birth, did number tamper with documents by submitting a wrong date of birth i.e. 1.10.1934 instead of 25.11.1931? Whether a long span of 33 years ought to be allowed to companye in the way to companyrect a false entry regarding date of birth made on wrong and tampered documentation of an employee, which undoubtedly being the date of birth shall seriously affect the services of the companyleagues of the said employees in the same cadre? Learned Civil Judge Senior Division dismissed the suit holding that there was numberground to interfere with the orders of the Deputy Commissioner who, on the basis of the enquiry companyducted, had observed that the date of birth was 1931 and number 1934 and if he had given actual date of birth he would have been over age and would number have been eligible for the post of patwari. The enquiry report of the Additional Deputy Commissioner was submitted on 21.5.1985. The Sub-Divisional officer, Sangrur who hold the enquiry held that the charge regarding change of date of birth from 25.11.1931 to 1.10.1934 was proved. The Deputy Commissioner dismissed the respondent from service with effect from 27.7.1988 after granting opportunity of hearing. An appeal was filed before the Commissioner who by order dated 18.6.1990 dismissed the same. He, however, reduced the punishment by observing that ends of justice would be met if he is reduced by one stage in his running grade with effect from the date on which he was charge-sheeted till retirement and he will number earn any increment during the period of this reduction till the date on which respondent was superannuated from service. Against the order passed by the trial companyrt an appeal was preferred before the District Judge who held that the materials on record do number show that there was any change in the true date of birth and the claimed date of birth i.e. 1.10.1934 is the actual date of birth as recorded. Second Appeal filed by the appellant as numbered above was dismissed on the ground that numbersubstantial question of law was involved. Learned companynsel for the appellant submitted that the approach of the first Appellate Court is number proper. On the basis of materials on record and after enquiry it was held that the date of birth was 25.11.1931 and number on 1.10.1934 as claimed. School register and the companynected records were produced which clearly show that the date of birth was 25.11.1931. The evidentiary value of these documents was discarded by the first Appellate Court primarily on the ground that a horoscope was produced according to which the date of birth was 1.10.1934. In response, learned companynsel for the respondent submitted that on evaluation of evidence the first Appellate Court held that the date of birth was 1.10.1934 and when a horoscope is available merely because a different date is indicated in the school record same is of numberconsequence. During the companyrse of hearing of the matter we directed the respondent to produce the original school leaving certificate which was sought to have been brought from the Government High School, Gujjarwal. It was filed by the respondent. A perusal thereof shows that the date of birth has been clearly indicated to be 25.11.1931. Stand of the respondent as numbered above was that the date of birth was entered in the service record by relying on the horoscope. It is to be numbered that respondent claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. It has number been explained as to how varying dates remained. If according to the respondent, the horoscope reflected the actual state of affairs it has number been explained as to why numbersteps were taken to get the school records companyrected. The first Appellate Court was number justified in its companyclusion that there was numbermaterial adduced by the present appellant to substantiate its stand regarding the date of birth. One thing further significant is that a school leaving certificate was produced at the time of appointment. On enquiry it was found that the same was forged one. Apart from the fact that there was numbereffort to reconcile the discrepancy in the so-called horoscope and the school record is a factor which has rightly been taken numbere of by the Trial Court. Without any plausible reason the first Appellate Court took a different view. In terms of Section 32, clause 5 of the Indian Evidence Act, 1872 in short the Evidence Act , the evidentiary value of a horoscope has to be companysidered. No evidence was led by the respondent to prove authenticity of the same. In any event the same was number to be given primacy over the school leaving certificate. It was number shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was number companyrect, which was number discharged. Two photostat companyies of the school leaving certificate were produced before the enquiry officer. He companypared them and found that even to naked eye change of figure 31 to 34 was visible. Interestingly in the said companyies the date of birth was indicated even after the change to be 25.11.1934 and number 1.10.1934 as claimed. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may number be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 Clause 5 must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. In that companytext horoscopes have been held to be inadmissible in proof of age. See Ram Narain Vallia v. Monee Bibi ILR 9 Cal.613 , Mst. Biro v. Atma Ram AIR 1937 PC 101 , Satish Chandra Mukhopadhya v. Mohendra Lal Pathak ILR 97 Cal. 849 . On the companytrary, the statement companytained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32, Clause 5 unless it is established by unimpeachable companytrary material to show that it is inherently improbable. The time of ones birth relates to the companymencement of ones relationship by blood and a statement therefore of ones age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause 5 . As observed by this Court in Umesh Chandra v. State of Rajasthan 1982 2 SCC 202 , ordinarily oral evidence can hardly be useful to determine the companyrect age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if numberdocumentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth companystitute good proof of age. There is numberlegal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam. Therefore, the school records have more probative value than a horoscope. Where numberother material is available, the horoscope may be companysidered but subject to its authenticity being established. These aspects were number companysidered by the first appellate Court and the High Court. The High Court was, therefore, number justified in dismissing the Second Appeal by observing that there was numbersubstantial question of law involved.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 494 and 495 of 1958. Appeals from the judgment and order dated April 18, 1955, of the Madras High Court in Case referred Nos. 53 of 1952 and 44 of 1953. Hardayal Hardy and D. Gupta, for the appellant. V. Viswanatha Sastri, R. Ganapathy Iyer, S. Padmanabhan and G. Gopalakrishnan, for the respondent. 1960. December 8. The Judgment of the Court was delivered by SHAH, J.-These are two appeals filed with certificates of fitness granted by the High Court of Judicature at Madras. Appeal No. 494 of 1958 arises out of orders passed in certain Excess Profits Tax Appeals and Appeal No. 495 of 1958 arises out of orders passed in certain Income-tax References, Excess Profits Tax Appeals and Business Profits Tax Appeals. M s. N. M. Rayaloo Iyer Sons-hereinafter referred to as the assessees-are a firm carrying on business principally in dyes and chemicals. They are the chief representatives in South India of the products of the Imperial Chemical Industries Company India Ltd.-hereinafter referred to as the I.C.I The business in dyes and chemicals was in the years material to these appeals, companyducted in the name and style of Colours Trading Company, with its Head Office at Madura and in thirteen branch offices in different towns in South India. The busines was carried on originally in partnership by three brothers, N. M. R. Venkatakrishna Iyer, N. M. R. Subbaraman and N. M. R. Krishnamurti. On April 13, 1946, N. M. R. Subbaraman retired from the firm and the share of N. M. R. Venkatakrishna Iyer was taken over by a private limited companypany N. M. R. Venkatakrishna Iyer Sons Ltd., but the business was, numberwithstanding the changes in the personnel, companytinued in the original name and style. One N. M. R. Mahadevan son of N. M. R. Venkatakrishna Iyer -hereinafter referred to as Mahadevan-was employed by the assessees as the General Manager of the Colours Trading Co. By letter dated April 17, 1940, the assessees wrote to Mahadevan agreeing to pay him remuneration at the rate of Rs. 1,800 per annum and 5 of the net profits of the companycern Colours Trading Company calculated by deducting from the gross profits of the business, salaries, wages and other outgoings but without making any deduction for capital. By letter dated March 30, 1943, the salary of Mahadevan was fixed at Rs. 3,000 per annum and the companymission was enhanced to 12- 1/2 of the net profits of the Colours Trading Company. The branch offices were managed by local managers and assistant managers who were paid in addition to monthly salary, annual and special bonus and dearness allowance. The assessees received from the I. C. I. companymission at rates varying between 7-1/2 and 12 on different products sold to them. With effect from April 1, 1944, the I. C. I. allowed a special emergency companymission of 5 on all dyes and dyestuffs sold to the assessees. This special emergency companymission was increased to 15 on all sales on or after March 1, 1945, but was subsequently reduced to 10 on sales on and after September 1, 1946. These appeals relate to the liability of the assessees to Excess Profits Tax for the chargeable accounting periods ending April 13, 1943, April 12, 1944, April 12, 1945, and, March 31, 1946, and for Business Profits Tax for the chargeable accounting periods ending April 12, 1946, March 31, 1947, April 13, 1947, March 31, 1948, and April 12, 1948. The assessees claimed that they had paid to their employees in the years of account 1942-43 to 1947-48 under agreements executed from time to time a share in the special emergency companymission received from the I. C. I., in addition to monthly salary, dearness allowance and general and special bonus. The I. C. I. in allowing the emergency companymission by its letter dated January 24, 1944, recommended that 1 out of the 5 companymission allowed may be passed on by the assessees to their sub-distributors. The assessees claimed that pursuant to this recommendation, they paid to their employees companymission at rates varying between 1-1/2 to 4, and when the emergency companymission was increased to 15 and the I. C. I. by letter dated February 23, 1945, recommended that 6 out of this companymission may be passed on to the sub-distributors, the assessees claimed to have distributed companymission at rates varying from 2 to 7-1/2 and in some cases at a rate as high as 12. Under the service agreements, companymission was payable to the employees only if the turnover in dyes exceeded Rs. 1,00,000 net in any year, but to employees in several branches the assessees claimed to have paid companymission at generous rates even when the turnover fell far short of that amount. In the year of account ending April 12, 1945, there was a revision of the scales of salaries of the employees, and the assessees companymenced giving to their employees dearness allowance and special bonus which in the aggregate exceeded 50 of the basic annual salary and also annual bonus equal to the annual salary. The result of this revision of emoluments was that each employee received an amount equal to at least 21 times his enhanced basic salary. In addition to this remuneration, the assessees claimed that they had paid a share in the companymission which in some cases exceeded 12 times the basic salary. In companyputing the total income of the assessees for the years 1943-44 and 1944-45 for purposes of income-tax, the Incometax Officer disallowed the payment of 12-1/2 of the net profits of the Colours Trading Co. to Mahadevan and in companyputing the income for the assessment years 1945-46, 1946-47, 1947-48 and 194849 the Income-tax Officer disallowed the companymission. paid to the branch managers and other employees. In appeal the Appellate Assistant Commissioner set aside the order which disallowed the amount of companymission paid to Mahadevan and following the order of the Income-tax Appellate Tribunal in certain Excess Profits Tax appeals, allowed 5 of the net profits without deduction of Excess Profits Tax or Business Profits Tax, or 121 after deduction of Excess Profits Tax or Business Profits Tax whichever was higher. That order was companyfirmed in appeal by the Income-tax Appellate Tribunal. The Tribunal also companyfirmed the order disallowing the emergency companymission paid to the branch managers and other employees, and in the companyputation of taxable income for purposes of Income-tax, Excess Profits Tax and Business Profits Tax, added back all those payments. At the instance of the assessees, the Tribunal referred two sets of questions to the High Court under s. 66 1 of the Income-tax Act read with s. 21 of the Excess Profits Tax Act. Questions 1 to 3 in Referred Case No. 44 of 1953 were Whether in allowing a deduction under s. 10 2 xv of the Income-tax Act, the Income-tax Officer is precluded from going into the question whether the amount was paid wholly and exclusively for the purpose of the assessees business? Whether there was any material before the Tribunal to hold that the companymission payment to N. M. R. Mahadevan at 121 before deduction of Excess Profits Tax or Business Profits Tax was number wholly and exclusively laid out for the purpose of the assessees business? Whether the companymission payment to the branch managers, assistant managers and other employees is an expenditure laid out wholly and exclusively for the purpose of the business? Questions referred in Referred Case No. 53 of 1952 were Whether the Appellate Tribunal erred in law in holding that in accordance with the terms of letters dated 17th April, 1940, and 30th March, 1943, and the companyduct of the parties the Excess Profits Tax payable by the assessee should be deducted from the profits before the companymission of 12-1/2 payable to M. N. R. Mahadevan is calculated? Whether there is any material on evidence sufficient in law for the Appellate Tribunal to hold that the companymission of 12-1/2 on profits paid to Mahadevan was unreasonable within the meaning of Rule 12 of Schedule 1 of the Excess Profits Tax Act? Whether on the facts and circumstances of the case the disallowance by the Excess Profits Tax authorities of the companymission paid to branch managers is justified under Rule 12 of Schedule 1 of the Excess Profits Tax Act? The material provisions relating to allowances under the Excess Profits Tax Act and the Business Profits Tax Act which Act superseded the Excess Profits Tax Act as from March 30, 1946 were on the questions arising in this case substantially the same and hereafter reference to the Excess Profits Tax Act will in respect of the period after March 30, 1946, be deemed to be a reference to the Business Profits Tax Act. In the opinion of the High Court, in companyputing the taxable income, the deductions claimed by the assessees fell to be companysidered number under s. 10 2 xv of Income-tax Act but properly under s. 10 2 x of the Income-tax Act, the latter being a specific provision in the Act relating to deduction of companymission or bonus paid to an employee. The High Court observed that in assessing liability to Excess Profits Tax the bonus or companymission paid to the employees of the tax payer may be permitted as a deduction in the light of s. 10 2 x of the Income-tax Act and r. 12 of Sch. 1 to the Excess Profits Tax Act. The case of Mahadevan, according to the High Court, did number present much difficulty, the only question which fell to be determined in this case being whether in allowing deduction of companymission at the rate of 12-1/2 on the net profits, the Excess Profits Tax paid by the assessees was to be taken into account. Following a judgment of the Punjab High Court in Commissioner of Income-tax, Delhi v. Delhi Flour Mills Ltd. 1 , the High Court observed that in companyputing net profits Excess Profits Tax companyld number be deducted, but on the materials on the record, the question whether the companymission paid to the branch managers and other employees was properly deductible companyld number be decided, and accordingly the High Court called for and obtained from the Tribunal a supplementary statement of facts. The High Court after companysidering the supplementary statement observed that the assessees had undoubtedly distributed substantial sums out of the emergency companymission to its managers and assistant managers in the branches at rates well above the minima recommended by the I. C. I., but the distribution was at rates within the percentages allowed by the I. C. I., as additional companymission and the balance retained by the appellants out of the emergency Commission was also substantial. In the view of the High Court, the Tribunal had to companysider three factors, 1 the reasonableness of the companymission in the light of the companyditions laid down in s. 10 2 x , 2 the reasonableness of the percentages above the minima suggested by the I. C. I., and 3 the need for maintaining the reputation of the I. C. I., and the distributor in companyditions that prevailed during that period when black-marketing was rampant, but observed the High Court the Tribunal had made numberreal attempt to analyse the evidence before it to justify its companyclusion that only the minima recommended by the I.C.I. and numberhing in excess satisfied the test of reasonableness under r. 12, Sch. 1, of the Excess Profits Tax Act. They then observed that, whether the test of reasonableness is that prescribed by s. 10 2 x of the Income-tax Act or whether reasonableness has to be judged in the light of companymercial expediency under r. 12, Sch. 1, of the Excess Profits Tax Act, the expenditure was to be judged from the point of view of a businessman and number by the application of any subjective standard of a taxing 1 1953 23 I.T.R. 167. officer and that on an analysis of the materials furnished, they were unable to see anything per se unreasonable in the amounts of companymission actually paid by the assessees to the branch managers and assistant managers in the branches. The High Court also observed that the minima recommended by the C. I. did number provide the only or an absolute standard for judging the reasonableness of the payments made, and stated No doubt, the employees of the assessee were in receipt of regular salaries and bonuses. But then, a sub-distributor if he had number been paid a salary, would have had to be paid a share of the basic companymission itself. What the assessee got in the years in question was in the nature of a windfall. It shared it with its employees. It had been instructed to share it. The emergency companymission was allowed by the Imperial Chemical Industries so that the distributors companyld maintain the reputation of the Imperial Chemical Industries in the market even under the disturbed companyditions that prevailed in those years. If, to maintain that reputation and to maintain its own, the assessee paid to its employee even on a liberal basis, a share of that emergency companymission, it is a little difficult to hold that, while receipt of the emergency companymission was reasonable, sharing it beyond a particular point would per se be unreasonable, in the sense that numberprudent businessman in that line of business, in those years, and in the market companydition that prevailed then, with ample scope for black-marketting, would have paid out companymission on such a basis. They then companycluded Though, of companyrse, it was for the assessee to show that it was entitled to the deduction claimed under s. 10 2 x of the Income-tax Act and r. 12 of Sch. 1 of the Excess Profits Tax Act, there was really numberbasis on record to show that judged from the point of view of a businessman, payments in excess of the minima recommended by the Imperial Chemical Industries were number reasonable. We are of opinion that the entire claim should have been allowed both under s. 10 2 x of the Incometax Act and under r. 12 of Sch. 1 of the Excess Profits Tax Act on the ground that the statutory requirements were satisfied by the assessee. The High Court accordingly answered the questions about the disallowance of companymission paid to the employees of the assessees being justified under r. 12, Sch. 1, of the Excess Profits, Tax Act in the negative. Against those orders, these two appeals have been preferred with certificates of fitness from the High Court. The first question which falls to be companysidered is whether in the companyputation of taxable income for purposes of Incometax and Excess Profits Tax, companymission allowed to Mahadevan at 12-1/2 should be allowed after deducting the Excess Profits Tax paid. By the agreement dated April 17, 1940, as modified by the agreement dated March 30, 1943, Mahadevan was to be paid remuneration at the rate of Rs. 3,000 per annum and 121 of the net profits of the Colours Trading Company. In the view of the High Court in determining the net profits under the agreement in accordance with the principles of companymercial accountancy and the principles laid down under the Excess Profits Tax Act the Excess Profits Tax which is a tax on profits companyld number be deducted. In our judgment the question is one of the true interpretation of the agreement. Mahadevan was under the agreement to receive 121 companymission on the net profits of the Colours Trading Co. calculated by deducting from the gross. profits of the business the salaries, wages and other outgoings. The expression outgoings is number restricted to business or companymercial outgoings. The agreement specifically disentitles the employers to make deductions of capital expenditure, but there is numberindication that the outgoings are to be business outgoings only. There is numberhing in the agreement or in the companytext justifying the view that in the expression outgoings is number included the Excess Profits Tax paid by the assessees. In Commissioner of Income Tax, Delhi v. Delhi Flour Mills Co. Ltd. 1 , it was observed by this Court in companystruing a similar agreement that the Excess Profits Tax was a part of the profits itself, but it was numberpart of the net profits companytemplated by the parties if it was a part which had to be deducted in arriving at the net profits, that is to say, the divisible profits which alone the parties had in mind, as a matter of companystruction the net profits meant divisible profits and were to be ascertained after deduction of Excess Profits Tax. Counsel for the Revenue has number challenged the decision of the High Court that in companyputing taxable income for the purpose of income-tax companymission paid to the various employees is a permissible deduction under s. 10 2 x of the Income-tax Act. The only question which survives on this branch for companysideration is, therefore, whether those deductions are permissible in the assessment of Excess Profits Tax. By s. 21 of the Excess Profits Tax Act, amongst other provisions, s. 10 of the Income-tax Act is made applicable with modifications if any as may be prescribed as if it were a provision of the Excess Profits Tax Act and refers to the Excess Profits Tax instead of Income-tax. By s. 2 19 , the expression profits means profits determined in accordance with Sch. 1 of the Act which lays down the rules for companyputation of profits for the purpose of Excess Profits Tax Act. Rule 12 of Sch. 1 which was added by s. 4 of the Excess Profits Tax Ordinance, 1943 provided as follows In companyputing the profits of any chargeable accounting period numberdeduction shall be allowed in respect of expenses in excess of the amount which the Excess Profits Tax Officer companysiders reasonable and necessary having regard to the requirements of the business and in the case of directors fees or other payments for services, to the actual services rendered by the person companycerned Provided that numberdisallowance under this rule shall be made by the Excess Profits Tax Officer unless he has obtained the prior authority of the Commissioner of Excess Profits Tax. 2 1959 Supp. 1 S.C.R. 28. Any person who is dissatisfied with the decision of the Excess Profits Tax Officer under this rule may. appeal in the prescribed time and manner to the Appellate Tribunal. In relation to chargeable accounting periods ending after the 31st day of December, 1942, the Central Government may make rules for determining the extent to which deductions shall be allowed in respect of bonuses or companymissions paid. We were informed at the bar that though authorised, the Central Government did number make rules for determining the extent to which deductions shall be allowed in respect of bonuses or companymissions paid. The Excess Profits Tax Act was substituted as from the year 1946 by the Business Profits Tax Act, 1947. That Act also defined by s. 2, cl. 16 , the expression profits as meaning profits determined in accordance with Sch. 1 and by s. 19, the provisions of the sections of the Indian Income-tax Act as applied to the Excess Profits Tax Act by virtue of ss. 21 and 21A in so far they were number repugnant to the provisions of the Business Profits Tax Act applied to that Act as they applied to Excess Profits Tax Act and by cl. 3 of Sch. 1, a provision substantially similar to cls. 1 2 of cl. 12, Sch. 1, of the Excess Profits Tax Act was incorporated. Profits of a business for purposes of Excess Profits Tax Act have to be ascertained by reference to s. 10 of the Incometax Act modified to the extent directed by Sch. 1 of the Excess Profits Tax Act. By cl. 12 of Sch. 1 of the Excess Profits Tax Act, a deduction in respect of expenses in excess of the amounts which the Excess Profits Tax Officer companysiders reasonable and necessary having regard to the requirements of the business and in the case of payments for services to the actual services rendered by the persons companycerned, is number to be allowed. The deduction to be allowed, it is true, does number depend upon any subjective satisfaction of the Excess Profits Tax Officer, but on objective standards as to what is reasonable and necessary having regard to the requirements of the business and in the case of payments for services to the actual services rendered by the persons companycerned. The order passed by the Excess Profits Tax ,Officer is open to review by the Tribunal to which appeal against the order of the Excess Profits Tax Officer lies. But in companysidering whether the deduction is properly claimed, the primary duty is vested by the Legislature in the Excess Profits Tax Officer. It is for him subject to review by the Tribunal to decide whether the deduction is reasonable and necessary, having regard to the requirements of the business and in case of payments for services to the actual services rendered. The jurisdiction which the High Court exercises on questions referred to it under the Excess Profits Tax Act is merely advisory the High Court is number sitting in appeal over the judgment of the taxing authorities. If the taxing authorities having regard to the circumstances companye to a companyclusion that expenditure claimed as a deduction is number reasonable and necessary, it is number open to the High Court to substitute its own view as to what may be regarded as reasonable and necessary. Even if the High Court holds that the taxing authorities have companymitted an error in law by misconceiving the evidence, or by applying erroneous tests, or otherwise by acting perversely, the High Court may in answering the questions submitted, lay down the true principles applicable to the ascertainment of the permissible deductions and leave it to the taxing authorities to adjudicate upon the reasonableness and necessity of the expenses in the light of the requirements of the business. In the case in hand, the Excess Profits Tax Officer held, a that the employees of the assessees were being amply remunerated for services rendered by adequate salary, generous dearness allowance and annual bonus equal to the basic salary, b that the emoluments of the employees had been increased year after year and there was numbermaterial to show that the employees had made a persistent demand for increased emoluments, c that the companymission was credited to the employees account at the end of the year and was carried forward but numberpayments were made to them d that the agreements which had been produced by the assessees were fabricated with a view to, reduce tax liability, and e that the expenditure claimed was number proved to have been laid out wholly and exclusively for the purpose of the business. Taking into account these circumstances, the Excess Profits Tax Officer held that the remuneration paid to the employees was adequate and any additional companymission paid was in excess of what was reasonable and necessary. The only criticism urged by companynsel for the assessees against the grounds given is that the Excess Profits Tax Officer observed that while the net profit according to the Profit Loss Account of the firm was Rs. 20,487 leaving a share of Rs. 6,800 only to each of the partners, some of the managers got more than this amount. It appears that the Excess Profits Tax Officer companymitted an error in so observing. The profits of the Colours Trading Co. as disclosed by the order of assessment for the year 1945-46 were Rs. 99,435 and number Rs. 20,487 but that error did number affect the ultimate companyclusion recorded by the Excess Profits Tax Officer. According to the books of account of the assessees for the year 1943-44 of the business in dyes, the profits were Rs. 99,435 and they claimed to have distributed a companymission of Rs. 1,00,715 to their employees out of the emergency companymission, which was prima facie wholly disproportionate to the amount received by them. The order passed by the Excess Profits Tax Officer was companyfirmed in appeal by the Appellate Tribunal. In the view of the Appellate Tribunal, numberadditional incentive was required to sell dyes and chemicals in the years in question because dyes and chemicals were in short supply and there was a rise in demand. The Tribunal also referred to the table setting out the distribution among the employees of dearness allowance, bonus and salary in the relevant years, and observed In addition to the generous allowances, the payment of this sum appears to us a payment made in order to dissipate the profits. It would be sufficient to say that including the companymission alleged 10 to have been paid, the total emoluments would be something like 1200 and in some cases even more than the basic annual salary. There is numberdoubt in our mind, that this was wholly unnecessary for business purposes. Observing that the assessees having numbersub-distributors, the direction given by the I.C.I. did number require the assessees to pass on the companymission to their employees, they companycluded that the expenditure alleged to have been incurred was number reasonable and necessary within the meaning of r. 12, Sch. 1, of the Excess Profits Tax Act. The following table which is incorporated in the statement of case of the Tribunal sets out for the four years in question the emergency companymission received by the assessees and the aggregate amount paid by them to their employees. Extra companymis- Amount of companymis- Assessment sion received sion paid by the year. by the assessee. assessee. Rs. Rs. 1945-46 1,28,533 1,00,715 1946-47 3,20,391 2,44,698 1947-48 3,15,934 1,28,506 1948-49 3,70,964 1,75,079 This distribution out of the emergency companymission to the employees has to be viewed in the companytext of the following circumstances set out by the Tribunal 1 that even though the I.C.I. recommended payment to subdistributors and the assessees had numbersub-distributors, they claimed to have paid companymission to their employees at rates in excess of the minimum rates recommended by I.C.I. 2 that this companymission was paid to the employees in branches in which the annual turnover did number exceed Rs. 1,00,000 even though the agreements which the assessees had executed expressly provided that the companymission was to be paid only if the annual turnover in a branch exceeded Rs. I lakh and 3 that the basic salaries of the employees had been substantially increased from time to time and generous dearness allowance and Deepavali bonus were given besides the annual bonus to the employees. An analysis of annexure IL to the supplemental statement of case made by the Tribunal discloses some striking instances of Payments to employees. One Themaswamy was paid annually companymission varying from Rs. 15,000 to Rs. 23,000 when his basic salary was Rs. 2,100 per annum one K. N. Rajagopalachari was paid companymission varying from Rs. 16,000 to Rs. 12,000 when his basic salary was Rs. 1,260 per annum one S. L. Radhakrishnan was paid companymission varying from Rs. 5,700 to Rs. 13,000 when his salary varied between Rs. 516 and Rs. 636 per annum and one K. R. Rama Rao was paid companymission varying from Rs. 4,600 to Rs. 10,520 his salary being Rs. 492 and later increased to Rs. 612 per annum. There was thus ample evidence in support of the companyclusion of the Excess Profits Tax Officer which was companyfirmed by the Tribunal. As we have already observed, it is the province of the Excess Profits Tax Officer and the Tribunal to assess the permissible deductions in the companytext of reasonableness and necessity having regard to the requirements of the business and interference with the companyclusion is permissible if the view of the taxing authorities is vitiated by an error of law or is number based on any materials, or the companyclusion is such that numberman instructed in law companyld have arrived at. It is true that in companysidering whether the deduction claimed by the assessees for payments made as bonus or companymission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of s. 10 2 x of the Income-tax Act and cl. 12 of Sch. 1 of the Excess Profits Tax Act and in assessing the reasonableness, companysideration of companymercial expediency must undoubtedly be taken into account. But companymercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons companycerned. Any abstract companysideration of companymercial expediency is out of place. In our view, the High Court was number justified in seeking to reappreciate the evidence on which the companyclusion of the Excess Profits Tax Officer which was companyfirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the companyrect tests or had misconceived the evidence, it was. open to them to invite the attention of taxing authorities to the error companymitted by them but the High Court companyld number set aside the decision of the taxing authorities on a reappreciation of the evidence. We may also point out that even if the High Court companycluded that the total disallowance of the deduction claimed was number justified, the High Court companyld number substitute its own view as to what was reasonable and necessary. The High Court bad, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the companysideration of the Excess Profits Tax Officer what in the circumstances was reasonable and necessary. Counsel for the assessees submitted that in any event, the Tribunal having in its supplementary statement of case stated that payment in excess of what was recommended by the C.I. was unjustified, this companyrt may so modify the order of the High Court that deductions of the amounts which were recommended by the I.C.I. may be regarded as permissible deductions. The I.C.I. recommended distribution of a certain percentage out of the emergency companymission to the sub-distributors but in the administrative set up of the assessees, the sub-distributors did number find a place. The assessees carried on their business through paid employees. In terms therefore the recommendation by the I.C.I. had numberapplication to the assessees. It is true that even if the assessees did number carry on the business through subdistributors, payment made to its employees if reasonable and necessary having regard to the requirements of the business, may still be deductible, but that in our judgment is a matter to be decided by the taxing authorities and number by us. The Tribunal had companye to the companyclusion that numberpayment in addition to the salary, annual bonus and, special bonus was justified and any expression of opinion to the companytrary in the supplementary statement pursuant to the order for statement of case companyld number in our judgment affect the companyclusion originally recorded. In our view the answer to the question whether the disallowance by the Excess Profits Tax authorities of the companymission paid to branch managers was justified under r. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us, Appeal No. 494/1958 will be allowed, but there will be numberorder as to companyts. Appeal No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1665 and 1666 of 1970. From the order dated the 25th July, 1968 of the Punjab and Haryana High Court in LPA Nos. 230 240 of 1968. S. Dhillon for the Appellant in both the appeals. Tirath Singh Munjral, G.K. Arora, S.S. Munjral and Gautam Bannerjee for the Respondents in both the appeals. The Judgment of the Court was delivered by KOSHAL J. By this judgment we shall dispose of Civil Appeals Nos. 1665 and 1666 of 1970 in which companymon questions of law have arisen for determination by this Court. The facts leading to the two appeals are undisputed and may be briefly stated thus. Licences to run liquor vends in various parts of Punjab during the financial year 1965-66 were sold by public auction shortly before the 1st April, 1965. Auctions were held at numerous places subject to identical companyditions which were supplied to the bidders in writing. Condition No. 8 which is material for our purposes is reproduced below That the licensee shall lift each month the proportionate quota for the month fixed for his vend s or deposit still-head duty realisable thereon. In the event of any deficiency in the amount of still-head duty realisable from the lifting of the full proportionate quota due to the short lifting of the quota by the licensee or number-deposit of the amount of the still-head duty, the said deficiency may be realised from the amount of security deposited by him at the time of grant of licence. The resulting deficiency in the amount of security shall be made good by the licensee within 7 days of such adjustment. In case the short lifting of proportionate quota or short deposit of still-head duty companytinues for two companysecutive months or the licensee fails to make up the deficiency in the amount of security within the prescribed period of 7 days, his licence may be cancelled in addition to the recovery of deficiency in still-head duty. Ajudhia Nath who figures as respondent No. 1 in each of the two appeals and who carries on business of selling companyntry liquor either in his own name or in the name and style of M s. Ajudhia Nath Bal Mukand a business companycern arrayed as respondent No. 2 in Civil Appeal No. 1665 of 1970 was the highest bidder for the auctions pertaining to 5 villages situated in the district of Amritsar and a companyple of villages in Ferozepur district. Accordingly the auctions were sanctioned in his favour and he was granted the necessary licences under the relevant provisions of the Punjab Excise Act hereinafter referred to as the Act and the rules framed thereunder. The licensee started his liquour selling business in the said seven villages on the 1st April, 1965. By the close of the financial year 1965-66, however, he was unable to lift the minimum quota of companyntry liquor and also failed to deposit the still-head duty which became payable by him under companydition No. 8 above extracted. He made applications claiming relief in the matter of payment of sums which had fallen due and such relief was granted to him in part by the Excise Taxation Commissioner, Punjab, on the ground that sales of companyntry liquor had been adversely affected by reason of the movement of population in the border areas of Punjab on account of the hostilities which broke out between India and Pakistan in the month of September 1965. Not satisfied with the relief so granted Ajudhianath filed two petitions under article 226 of the Constitution of India before the High Court of Punjab and Haryana claiming, inter alia, that still-head duty was an excise duty which companyld be levied only on manufacture of goods and which he was number liable to pay by reason of the admitted fact that he was number a manufacturer of liquor. A grouse was also made by him of the fact that the applications claiming relief had been decided without affording to him an opportunity of being heard. One of those petitions Civil Writ Petition No. 2034 of 1966 related to vends functioning in the two villages of Ferozepur District, while the other Civil Writ Petition Nos 2035 of 1966 companyered the 5 vends located in the 5 villages of Amritsar District. The petitions were allowed by a single order dated the 9th May, 1967 passed by D.K. Mahajan, J., on the sole ground that a similar petition Civil Writ Petition No. 2021 of 1966 had been allowed by Gurdev Singh, J., on the 27th March, 1966. The proceedings for the recovery of the short fall in the deposit of still-head duty by Ajudhia Nath which had been initiated by the State of Punjab and its companycerned officers appellants Nos. 1 to 4 in each of the appeals before us were quashed and the Excise and Taxation Commissioner, Punjab appellant No. 2 in both the appeals was directed to dispose of the cases of the respondents in accordance with law after hearing the petitioners. D.K. Mahajan, J., adopted all the reasons on which Gurdev Singh, J., had based his order above mentioned. Letters Patent Appeals preferred by the 4 appellants to the Division Bench of the High Court were summarily dismissed by Mehar Singh and Tuli, JJ., for the reason that a Letters Patent Appeal against the judgment of Gurdev Singh, J., above mentioned had met the same fate. It is against the judgment of the Division Bench which is dated the 29th August, 1969 that each of the appeals before us has been filed. Mr. Dhillon, learned companynsel for the appellants had drawn our attention to The State of Punjab v. Balbir Singh and Others, which reversed the judgment of Gurdev Singh, J., mentioned above and has companytended that the very basis of the impugned judgment has companysequently fallen to the ground. The companytention is companyrect. As pointed out in Balbir Singhs case supra the judgment of Gurdev Singh, J., in Civil Writ Petition No. 2021 of 1966 had proceeded merely on the ground that the petitioner-firm therein had number been given an opportunity of being heard in relation to the demand numberice issued to it for payment of the still-head duty on the entire minimum quantity of liquor which that firm was required to lift under the licence. In differing with the view expressed by Gurdev Singh, J., this Court made a reference to the following observations of Chandrachud, J., as he then was in Har Shanker and Others v. The Dy. Excise Taxation Commissioner and Others which was followed in Shyam Lal v. State of Punjab The announcement of companyditions governing the auctions was in the nature of an invitation to an offer to those who were interested in the sale of companyntry liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Governments acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the companytract between the bidders and the Government became companycluded and a binding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of companytract between them and the Government, under which they became entitled to sell liquor. The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial companysiderations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a numbermal incident of the trading transactions. Those who companytract with open eyes must accept the burdens of the companytract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to companylect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of companytract do number depend for their enforceability upon whether a companytracting party finds it prudent to abide by the terms of the companytract. By such a test numbercontract companyld ever have a binding force. and companycluded that the demand for the short-fall in stillhead duty was based on the term of a binding companytract and that it sought to enforce the liabilities arising out of mutually agreed companyditions of auction. Such a demand, in the opinion of this Court, companyld number be equated with a numberice requiring the liquor vendor to show cause why his licence should number be cancelled. In making this distinction this Court further relied upon State of Punjab v. Mulkh Raj and Co. wherein it was observed- It was also held there that a cancellation of the licence under section 36 of the Punjab Excise Act, 1914, had to take place quasi-judicially after due service of the numberice on the licensee to show cause why it should number be cancelled. Although, the merits of the last mentioned proposition need number be examined by us as it rests on a sound footing, yet, we find it difficult to uphold the order that the demand for a sum of Rs. 36,636. On account of short-fall should also be quashed on account of number-compliance with rules of natural justice in cancelling the licence in proceedings under section 36 of the Act. We think that the two liabilities were erroneously companysidered by the High Court to be inextricably linked up We do number think that, even if the respondent ought to have been given a hearing before cancelling the licence, this would dispense with his liability to deposit the amount of balance of the licence fee or invalidate the numberice of demand for it. Thus, the proposition is by number well-settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does number companye into play when the demand is merely for payment of a sum becoming due under the companyditions subject to which the licence was granted, and this proposition fully companyers these appeals. The demands for payment of the amount of the still head duty which had become due under the companytracts accepted by the respondents and had remained unpaid were demands arising under companydition No. 8 above extracted and had, therefore, resulted from the terms of those companytracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to be reversed. Faced with the above situation, Shri Munjral, learned companynsel for the respondents, raised the following two companytentions Still-head duty is a duty of excise which companyld only be levied on a manufacturer and number on a mere vendor of goods manufactured by others. If the still-head duty mentioned in companydition No. 8 above extracted cannot be regarded as a duty of excise, it nevertheless amounts to a tax of some other kind for levying which the State lacks authority. Reliance in companynection with companytention a is placed on Entry 51 of List II forming part of Schedule VII to the Constitution of India and on section 31 of the Punjab Excise Act. The relevant portions of these provisions state Entry 51 Duties of Excise on the following goods manufactured or produced in the State and companyntervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India - a alcoholic liquors for human companysumption Section 31 An excise duty or a companyntervailing duty, as the case may be, at such rate or rates as the State Government shall direct, may be imposed, either generally or for any specified local area, on any excisable article- a imported, exported or transported in accordance with the provisions of section 16 or b manufactured or cultivated under any licence granted under section 20 or c manufactured in any distillery established, or any distillery or brewery licenced under section 21 These provisions leave numberroom for doubt that a duty of excise on alcoholic liquors meant for human companysumption cannot be recovered from the respondents because numbere of the 3 clauses of section 31 companyers their business activities. But then the first part of companytention a that still-head duty is a duty of excise cannot be accepted in view of the dicta in Har Shankar and others v. The Dy. Excise Taxation Commissioner and others supra and The State of Punjab v. Balbir Singh and others supra to the effect that the short-fall in still-head duty represents numberhing but sums recoverable by the appellants under the terms of a companytract which was entered into by the respondents with their eyes open and that the latter cannot be allowed to have the best of both the worlds by exploiting the companytract so long as it suits them and by repudiating it if and when it does number work to their advantage. Shri Munjral has vehemently companytended that stillhead duty is only another name for excise duty inasmuch as it is numberhing more or less than a duty leviable on the manufacture of alcoholic liquor. For this proposition he places reliance on a Division Bench judgment of the High Court of Punjab Haryana in M s. Bhajan Lal Saran Singh Co. v. The State of Punjab and others the approval of that judgment by this Court in Civil Appeals Nos. 1042 and 1043 of 1968 decided on 21st August, 1972, State of Madhya Pradesh v. Firm Gappulal etc. and Excise Commissioner, U.P., Allahabad and others v. Ram Kumar and others. These authorities, however, are of numberhelp to him because, in every one of them, the still-head duty which was mentioned in the companydition companyresponding to companydition No. 8 in the present case was either expressly stated to be an excise duty or was assumed to be a duty of that character. In fact, in the case of M s. Bhajan Lal Saran Singh it was companyceded on behalf of the State before the High Court that still-head duty was an excise duty and that is why the nature of the charge as excise duty was taken for granted before the High Court as well as in this Court. No question was either raised or decided as to whether it companyld at all be regarded as an excise duty. However, in later cases, namely, Har Shankar and others v. The Dy. Excise Taxation Commissioner and others, supra and The State of Punjab v. Balbir Singh and others supra the demand for still-head duty recoverable under companydition No. 8 above extracted was specifically held to be a demand for money which had become due under an obligation created by terms of the companytract. It is too late in the day, therefore, for Shri Munjral to companytend that such a demand should be companysidered as one companyering excise duty. He, however, relies on the following passage in Har Shankar and others v. The Dy. Excise Taxation Commissioner and others supra The second decision on which the appellants laid stress was rendered by the High Court of Punjab and Haryana in Jage Ram v. State of Haryana C.W. No. 1376 of 1961 decided on March 12, 1968 . The argument is that this decision is based on the earlier decision of the High Court in Bhajan Lal v. State of Punjab C.W. No. 538 of 1966 decided on February 6, 1967 , that the decision in Bhajan Lals case was companyfirmed in appeal by this Court C.A. Nos. 1042 and 1043 of 1968 decided on August 21, 1972 , that there is numbermaterial difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lals case and therefore, the rules and the procedure followed herein must also be struck down for the same reasons. This argument overlooks the significant difference between the rules struck down in Bhajan Lals case and in Jage Rams case and the amended Rules number in force. Under the old Rule 36 23- A still-head duty which was admittedly in the nature of excise-duty was payable by the licencee even on quota number lifted by him. The Rule and Condition No. 8 founded on it were therefore struck down in Bhajan Lals case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and number the manufacturer of liquor. Rule 36 was amended on March 31, 1967 in order to meet the Judgment in Bhajan Lals case but the High Court found in Jage Rams case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is number only 0. 64 paise as against Rs. 17.60 per litre which was in force under the old Rules and excise duty as such is numberlonger payable on unlifted quota. The principle governing the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer. Emphasis supplied Special stress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is companytended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved number dissented from but were merely distinguished in Har Shankars case, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still-head duty amounted to an excise duty and that companydition No. 8 as obtaining in the present case being identical with the companyresponding companydition in those cases, it must be held that Har Shankars case is an authority for the proposition that the said companydition No. 8 seeks to levy numberhing but excise duty in the form of still-head duty. A careful perusal of the passage cited which appears at first sight to lend companyour to the companytention leaves numberroom for doubt, however, that in deciding Har Shankars case this Court was number called upon to adjudicate on the Constitutional propriety of companydition No. 8 above extracted, number with the question as to the nature of the levy companyered by that companydition. All that the Court said was that the companyresponding companydition in Har Shankars case was a very different companydition which companyld in numbermanner be companystrued to levy an excise duty. Besides, it was pointed out in the passage above quoted that the stillhead duty mentioned in the relevant companydition in the earlier cases which was indentical with companydition No. 8 was admittedly a duty of excise-a fact to which we have already adverted while holding that companydition No. 8 does number involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a companytract. We may also point out that the respondents are number companynected in any manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, numberquestion at all of levying a duty of excise on their operations which were companyfined merely to the sale of liquor manufactured by others and which, therefore, companymenced only after the process of manufacture was companypletely over. For all these reasons, we repel the companytention under examination. Contention b is also without substance and need number detain us long. For one thing, it was never raised at any earlier stage and its companysideration is bound to work prejudice to the cause of the appellants. Secondly, as already pointed out above, there is numberimpediment in the way of the demand being regarded as the enforcement of an obligation arising under the companytracts which the respondents had entered into and exploited so long as the same worked to their advantage and which were fully permissible under sub-section 3 of section 34 of the Punjab Excise Act. That sub-section states - Every licence, permit or pass granted under this Act shall be granted- a on payment of such fees, if any, b subject to such restrictions and on such companyditions, c in such form and companytaining such particulars, d for such period, as the Financial Commissioner may direct. According to Shri Munjral the payment of licence fees is provided for in the companyditions of auction apart from companydition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause b of the sub-section just above reproduced. That clause allows the imposition of companyditions on the grant of a licence, in addition to the payment of the licence fees which is a matter companyered by clause a . Condition No. 8 is, therefore, fully enforceable and there is numberreason why still-head duty should be regarded as a tax of any kind whatsoever. For the reasons stated, both the appeals are accepted and the impugned judgment. which cannot be sustained, is reversed so that both the petitions under article 226 of the Constitution of India filed by the respondents before the High Court and accepted by it are dismissed. However, we leave the parties to bear their own companyts.

N.Ray.J. All these appeals arise out of a companymon judgment dated March 31, 1987 passed by the Patna High Court in Criminal Appeal No.390 of 1983 Uday Prasad and two others Vs. State of Bihar and Criminal Appeal No.382 of 1983 Sheoji Prasad Vs. State of Bihar arising out of the judgment dated July 18, 1983 passed by the learned 4th Additional Sessions Judge. Arran in Sessions Trial No.314 of 1981. By the impugned judgment, the High Court has dismissed both the appeals and companyvictions and companysequential sentence passed by the learned Additional Sessions judge against the companyvicted appellants were affirmed by the High Court. The four accused namely Sheoji Prasad A/1 , Udai Prasad A/2 . Parameswar Prasad A/3 and Behari Prasad A/4 stood charged under Section 302 read with Section 149 and 34 I.P.C. for being members of an unlawful assembly with the companymon object and companymon intention to companymit murder of one Lal Babu on April 5, 1980 at about 1.00 P.M. at Arran town. The accused No.2 Udai Prasad was further charged under Section 302, 148 I.P. C. and Section 27 Arms Act. The accused Nos.3 and 4 namely Parameswar Prasad and Behari Prasad were also charged under Section 143 and 302/149 P.C. Accused No.1 Sheoji Prasad was also charged under Section 323 and 147 I.P.C. for causing voluntary hurt to Nandji P.W.1 with a hockey stick and for companymitting the offence of rioting. There was another accused Rameswar Prasad, the father of the accused No.2 Udai Prasad and accused No.3 Behari Prasad out he had died before the trial was companypleted. Excepting the accused Shedji Prasad, the other three accused are close relations. The accused Nos.2 and 4 are real brothers and accused No.3. Parameswar Prasad is the uncle fathers brother of the accused Nos.2 and 4. The deceased Lal Babu was nephew brothers son of Rameswar deceased and accused No.3 Parameswar Prasad. The companymon ancestor of the deceased and the accused Nos.2 to 4, namely. Baijnath Prasad had self acquired properties. In the ancestral house at Mohalla Mahadeva at Arran town, all the sons of Baijnath Prasad excepting the deceased accused Rameswar Prasad used to reside. The said Rameswar used to stay with the members of his family including his two sons namely accused No.2 Udai Prasad and accused No.4 Behari Prasad in a separate house hear Lalji Kothi close to Shismanal chowk in the town of Arran which is within the market area. The members of the family of Rameswar used to stay on the upper floor of the said house and in the ground floor there were two shops. The incident of murder had happened close to the said shoos. The numberthern shop of the said house was given by Baijnath to the father of the deceased Lal Babu since deceased. The remaining portion was given by Baijnath to his other two sons Gajadher Prasad W.4 and Beni Prasad, the deceased father of P.W.1 Nandji Prasad. Such disposition of his properties by Baijnath was number liked by his two other sons namely Rameswar deceased accused and Parameswar A/3 . It appears that a probate proceeding was pending between the five sons of Baijnath and their successors-in-interest. The interest of deceased Beni Prasad and deceased Badri Prasad were represented by their sons-Nandji Prasad P.W.1 and the deceased Lal Babu. The residential portion of the house where accused Rameswar used to live with his family members fell in the share of Lal Babu and suit for eviction of Rameswar was filed by Ram Babu. The shop room in the ground floor of the said house which was given to the father of Ram Babu by Baijnath was tenanted and accused No.1 Shedji Prasad was the tenant of the said shop room. A suit for eviction of Shedji was filed and such suit was fought upto this Court. The tenant Sheoji Prasad companypromised with the deceased Lal Babu by giving an undertaking that by a particular date, he would believer vacant possession of the same to the deceased Ram Babu. Since vacant possession was number delivered, an execution case was instituted in the companyrt of the learned Munsif at Arran. The executing companyrt passed an order directing delivery of possession by the officer of the Court. On the date of the incident of murder. Rajib Ranjan the Naip Nazir of the Court DW 1 was deputed to deliver possession of the shop room tenanted to Sheoji Prasad to Ram Babu deceased. The said Naib Nazir in the companypany of four companyrt peons and a lawyer reached the said shop at about 1.00 M. on April 5, 1980. It appears from the deposition of Rajib DW 1 and his report Ext.B that since one Dariachnan Sad claimed tenancy right in respect of the said shoo room on the ground of being inducted as a tenant by the deceased accused Rameswar, the said Naib Nazir did number deliver possession of the said shop room to the deceased Ram Babu and left the place. The prosecution case in short is that on a false plea of tenancy raised by Dariachhan, the Naib Nazir being prevailed upon by the deceased Rameswar, accepted the case of tenancy and did number deliver possession to Ram Babu without ascertaining real state of affair. As soon as the said Naib Nazir, the companyrt peons and the lawyer left the place, at the exhortation of accused No.1 Sheoji Prasad, to the accused persons present at the spot, the deceased accused Rameswar Prasad and accused No.1 Sheoji Prasad assaulted the informant Nandji Prasad P.W.1 and P.W.2 Badri Prasad respectively with an iron rod for measuring cloth and a hockey stick. Accused No.3 Parameswar Prasad and accused No.4 Behari Prasad then caught hold of both the arms of the deceased Ram Babu and on being exhorted by accused No.3 Parameswar, accused No.2 Udai Prasad fired on the deceased Lal Babu with a companyntrymade pistol. The deceased accused Rameswar gave a plow on the head of the deceased Ram Babu with the said iron rod. Ram Babu and the two other injured namely Nandji Prasad P.W.1 and P.W.2 Badri Prasad were taken to the hospital at Arran. Ram Babu, however, succumbed to the injuries shortly after the incident. At about 14.05 hours i.e. within half an hour of the incident, the fardbayan of Nandji Prasad P.W.1 was recorded and within a few minutes formal F.I.R. was drawn up. Investigation of the case was immediately taken up and at about 14.15 hours, inducts of the dead body of Ram Babu was made. The Investigating Officer visited the place of occurrence and blood stained earth was seized and a seizure list Ext.6 was prepared. Both the injured P.W.1 Nandji and W.2 Badri Prasad were examined by the doctor at Arran hospital at about 14.10 hours. The Investigating Officer Astadue Hussain, however, did number appear in companyrt to depose. His investigation report was identified by F.W.E. the clerk of the public prosecutor and was marked as Ext.4. The prosecution case has been sought to be proved by examining several eye witnesses. P.W.1 Nandji and P.W.2 Badri are injured eye witnesses. P.W.1 Nandji is the informant of the said incident of murder and rioting. P.W.2 Badri Prasad is the father-in-law of the deceased. PW 3 Kumkum is the daughter of the deceased. She is a school going girl aged about 14 years. According to her evidence, she had gone to the place of incident for witnessing delivery of possession of the shop through Court. P.W.4 is Sajadher Prasad who is an uncle of the deceased. P.W.5 has number deposed for the prosecution but he was tendered for cross examination. The learned Additional Sessions Judge after companysideration of the evidences adduced in the case and the materials on record inter alia came to the finding that the accused were pent upon number giving possession of the shoo room and was also pent upon harassing the decree holder deceased and being annoyed with the deceased for taking steps to get delivery of the possession of the said shop room through companyrt, the accused took extreme step in eliminating the decree holder by killing him and also assaulting the uncle and the father-in-law of the deceased who were present at the spot in order to help the deceased in taking possession. The learned Additional Sessions Judge held that all the four accused along with deceased accused Rameswar had formed an unlawful assembly for the purpose of killing Ram Babu and assaulting his helpers on April 5, 1980 at about 1.00 P.M. on the road in front of Lallanji kothi and in furtherance of companymon object and companymon intention of the accused, accused No.2 Udai Prasad companymitted murder of Ram Babu by companyntry made gun and other two accused namely accused No.3 Parameswar and accused No.4 Behari Prasad in furtherance of the said companymon object and companymon intention held both the arms of deceased Ram Babu and Parameswar also exhorted Udai to kill Ram Babu. The learned Additional Sessions Judge also held that deceased Rameswar and accused No.1 Sheoji Prasad assaulted P.W.1 and P.W.2 and Rameswar also assaulted the deceased. The learned Additional Sessions Judge, therefore, held accused No.2 Udai Prasad guilty for the offence under Section 302 and 148 I.P.C. and also under Section 27 of the Arms Act for possessing unauthorised arm and also found him guilty under Section 302 read with 149 and 302/34 I.P.C. The said accused No.2 Udai Prasad was sentenced to imprisonment for life for offence under Section 302 but numberseparate sentence was passed for the offence under Section 148. 302/149. 303/34 I.P.C. and Section 27 of the Arms Act. Accused No.3 Parameswar and accused No.4 Behari Prasad were sentenced to imprisonment for life for offence under Section 302/149. They were also found guilty for offence under Section 302/34, 302/109 but numberseparate sentence was passed for such offence. Accused No.1 Sheoji Prasad was sentenced to imprisonment for life for the offence under Section 302/149 I.P.C. but numberseparate sentence was passed for the offence under Section 302/34 and 147 I.P.C. although he was found guilty for such offence. Against the said companyviction and sentence of the learned Additional Sessions Judge. Udai Prasad, Behari Prasad and Parmeswar Prasad preferred Criminal Appeal No.390 of 1983 before the Patna High Court. Sheoji Prasad preferred Criminal Appeal No.382 of 1983 before the Patna High Court against his companyviction and sentence. Both the appeals were heard analogously by the Division Bench of the High Court and by a companymon judgment dated March 31, 1987, the High Court dismissed both the appeals by affirming the companyviction and sentence passed by the learned Additional Sessions Judge. Mr.Sushil Kumar, the learned Senior Counsel appearing for the appellant Behari Prasad in Criminal Appeal No.1 of 1989 has submitted that in this case it is an admitted position that the deceased and the alleged eye witnesses for prosecution belong to one camp. The close relations of the deceased namely P.W.1, 2, 3 and 4 are highly interested witnesses and they were actuated by a strong desire to ensure that deceased accused Rameswar and their two sons namely Udai Prasad A/2 and Behari Prasad A/4 and their uncle Parameswar Prasad A/3 were roded in for the offence of murder of Ram Babu. Admittedly, the incident had taken place in broad day light in the market area of Arran town where number of independent persons were present. But the prosecution chose to examine only the close relations of the deceased to prove the case and numberindependent and reliable witness has been examined. Mr.Sushil Kumar has submitted that according to the prosecution case the Naib Nazir had already been influenced by the accused and the judgment debtor Sheoji Prasad and the said Naib Nazir on the protest by one Dariachnan claiming tenancy right in the disputed shop room, did number deliver possession of the said shoo and had left the place. Therefore, there was numberoccasion to indulge in criminal activities including companymission of a grave offence of murder in the broad cay light in a market place of a town. The prosecution story on the face of it is highly improbable. Mr.Sushil Kumar has submitted that alleged eye witnesses have deposed that the tenant of the shop Sheoji Prasad A/1 had only a hockey stick in his hand. The others were empty handed. The deceased accused Rameswar had also numberweapon in his hand but he picked up a small iron rod for measuring cloth in the shop itself. The deceased was admittedly accompanied by his relations. If there was any companymon object or companymon intention to kill the deceased Ram Babu, it was reasonably expected that the accused would have companye variously armed so that oesdite expected resistance from the deceased and his relations and companypanions, they companyld over power the deceased and his companypanions with the help of weapons to be carried by them. The very fact that the accused were practically unarmed, amply indicates that there was numbercommon object or companymon intention to companymit murder of Ram Babu. Admittedly, Sheoji is a tenant of the shop in question. Deceased Rameswar and his two sons Udai and Behari admittedly stayed in the upper floor of the same building. Parameswar was a vary close relation of the said three accused being brother of Rameswar and uncle of Udai and Behari. Hence, the presence of the said accused in the shop or hear the shop, even if accepted, will number companystitute formation of unlawful assembly. According to the prosecution case, after the Naib Nazir of the companyrt had left the shop. Sheoji Prasad A/1 exhorted to the other accused to assault the deceased. On such exhortation. Nandji Prasad P.W.1 and Badri Prasad P.W.2 were assaulted by Rameswar and Sheoji Prasad respectively with iron rod for measuring cloth and hockey stick. The prosecution witnesses have number alleged that other accused on such exhortation assaulted the said witnesses or even Ram Babu. The only allegation is that Parameswar A/3 and Badri A/4 had caught both the arms of the deceased. According to prosecution case, it was only at this stage that Parameswar exhorted Udai to kill Ram Babu whereupon Udai A/2 whipped out a companyntrymade pistol and fired at Ram Babu. Mr.Sushil Kumar has submitted that there is enough doubt as to which weapon was used by Udai. The weapon was described both as a gun and as a pistol. Such vague description of the weapon by the eye witnesses who claimed to have seen the occurrence from a close range, also suggests that they had number seen any weapon in the hand of Udai and numbericing that an injury by a fire arm was caused to the deceased, a false allegation of using a pistol or a gun by Udai was made. Mr.Sushil Kumar has submitted that the prosecution story cannot be accepted because the manner in which the deceased was injured by a gunshot is highly improbable. Mr.Sushil Kumar has submitted that if accused No.3 and accused No.4 had held both the arms of the deceased and accused No.2 Udai had shot the deceased from a close range by using deletes, both accused No.3 and accused No.4 would have sustained injuries at least by few deletes because such deletes would have diverged after companying out of the barrel of the gun. But numbersuch injury was caused to the said witnesses. Appreciating the improbability of the prosecution case, the eye witness tried to embellish at the time of deposition. Although it was number stated in the fardbayan companystituting F.I.R. that the said two accused had released the hands at the time of firing, such case was later on sought to be introduced in the deposition. Such material companytradiction in the case made out in deposition and as alleged in F.I.R. companying from a close relation and interested witness should number be accepted particularly in the absence of any companyporation from reliable, independent and disinterested witnesses. Mr.Sushil Kumar has submitted that numberreliance should be made on the deposition of the daughter of the deceased Kumkum . She was admittedly a school girl and numbermally she would have been in the school at the time of companymission of offence. But she has deposed that she did number go to school but came to the market place to witness the delivery of possession of the shop room. Such case is highly unusual and improbable and numbercredence should be given to the deposition of such chance witness who was numbermally number expected to be present. Mr.Sushil Kumar has admitted that in this case Investigating Officer has number been examined. But the entire case diary was allowed to be exhibited. The prosecution and the Judge have relied on the numberhings in the case diary Although the maker of the case diary did number prove the companyrectness of such numberhings and the companyrectness of the recordings in the diary had number been tested by cross examining the Investigating Officer. Mr. Sushil Kumar has submitted that by looking to the case diary and relying on the same in support of prosecution case serious prejudice to the accused has been caused and such action has occasioned a grave miscarriage of justice. In this companynection, Mr.Sushil Kumar has referred to the decision in State of kerala Vs. Ammina AIR 1988 Kerala 1 1988 Crl.L.J. 107 . A Division Bench of the kerala High Court has held in the said decision that the diary mentioned in Section 172 1 and statements recorded under Section 161 3 of the Code of criminal Procedure are companyered by the sweep of inhibition companytained in Section 162 of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort to Section 172 2 of the Code. The two are different records, though the diary envisaged under Section 172 1 and statements recorded under Section 161 3 may together be incorporated in the same file which the police call for the sake of companyvenience case diary file. That apart, Section 172 2 of the Code embodies an inhibition that the diary envisaged in that section is number to be used as evidence in the case. Mr.Sushil Kumar has also relied on a decision of the Mysore High Court in Hirianna Shetty Vs. The State of Mysore 1972 1 Mysore Law Journal 50 . It has been held in the said decision that the examination of the Investigating Officer is necessary in order to bring on record the companytradictions in the statements of witnesses and such a right is a valuable right of the accused. Non examination of the Investigating Officer is a serious infirmity in so far as it deprives the accused of an opportunity to show that witnesses were number reliable by proving companytradictions in the earlier statements. Mr.Sushil Kumar has submitted that the accused in this case, particularly when the witnesses were only partisan witnesses, have suffered serious prejudice on account of being deprived of the opportunity to point out material companytradictions in the earlier statements of the witnesses for number examining the Investigating Officer. Mr.Sushil Kumar has submitted that in the aforesaid facts, the prosecution case must be held to have number been proved beyond reasonable doubt and all the accused should be acquitted. Mr.Sushil Kumar has also submitted that in any event accused No.4 Behari Prasad deserves to be acquitted. Admittedly, he was staying on the upper floor of the building in which the said shoo room appertained. It is quite probable that out of curiosity he had companye to see the action by Naib Nazir in execution of a companyrt case. He was admittedly empty handed. The only allegation against him was that he caught hold of one of the arms of the deceased. When suddenly Parameswar exhorted to Udai to kill the deceased. Udai whipped out a fire arm and shot at the deceased. It cannot be reasonably held that he had any companymon intention or companymon object of killing Ram Babu. It is number unlikely that although he along with others might have intended to give some thrashing to the deceased, the events suddenly changed on the exhortation of Parameswar to kill the deceased. It is also number unlikely that Behari was rot aware that Udai had companycealed a fire arm which he had used on sudden provocation by Parameswar. Hence, numberconviction under Section 302/149 or 302/34 I.P.C. can be given to Behari even if the prosecution case that he caught one of the arms of the deceased is accepted on its face value. The appellant Behari, therefore, should be acquitted by allowing his appeal. Mr.U.R.Lalit, learned senior companynsel appearing for the appellant Parameswar in Criminal Appeal No.437 of 1988 has also endorsed the arguments made by Mr.Sushil Kumar that the prosecution case was number believable and had number been established beyond reasonable doubt. He has also endorsed the submission that the case diary number having been proved, such case diary companyld number be looked into and the accused had suffered serious prejudice for number examining the Investigating Officer. He has submitted that such number examination of the Investigating Officer and companysequential prejudice in number getting the opportunity to effectively cross examine the eye witnesses by indicating companytradictions in the earlier statements before the police, have vitiated the trial. Mr. Lalit has submitted that Parmeswar is the real brother of Rameswar and uncle of Udai and Behari. His presence in or hear the residential house of Rameswar was neither unusual number per se illegal. He was admittedly without any arm. The allegation against him is that he caught hold of one of the arms of the deceased Ram Babu and exhorted Udai to kill Ram Babu and Udai thereafter shot the deceased. Such case is highly improbable. He has also submitted that numberman holding an arm of the victim will ask the assailant to fire bellet shots on the victim from a close range because in that event, the person giving exhortation was also likely to be injured. Mr.Lalit has submitted that the prosecution case was wholly unreliable and the appellant should be acquitted. Mr.Promod Swarup learned companynsel appearing for the appellant Sheoji Prasad in Criminal Appeal No.195 of 1989 has also endorsed the submissions of Mr.Sushil Kumar and has submitted that the prosecution had number only failed to establish the prosecution case beyond reasonable doubt but such case on the face of it was highly improbable. Mr.Swarup has submitted that Sheoji Prasad is number related to the other accused or the deceased and their relations. He is admittedly a member of a different caste. Sheoji Prasad was tenant of the shop in respect of which decree for eviction was passed. Sheoji Prasad had undertaken to vacate the shoo room before this Court. It is, therefore, unlikely that on his own initiative he would flout the undertaking and forcibly resist execution of the decree. Even if it is assumed that he was keen in frustrating the execution of the decree, admittedly such purpose was secured when the Naib Nazir without executing the decree left the place. After such event, there was hardly any occasion for Sheoji Prasad to wreck any vengeance on the decree holder by inciting other accused. Presence of Sheoji Prasad in his own shop is wholly legal and he cannot be held to be a member of unlawful assembly. The allegation is that after the Naib Nazir and companyrt peons and the lawyer had left the shop, he exhorted other accused to assault the deceased and his companypanions. It is alleged that Sheoji had only a hockey stick with which he assaulted Badri Prasad. There is numberallegation against him that he assaulted the deceased or exhorted for killing the deceased. Mr.Swarup has submitted that even if the prosecution case is accepted. Sheoji Prasad is number liable to be punished for offences under Section 302/34, 302/149 and Section 147 I.P.C. Hence, companyviction of Sheoji Prasad for the aforesaid offences is wholly illegal and should be set aside. The learned companynsel appearing for Udai Prasad A/2 in Criminal Appeal No.789 of 1989 has endorsed the submissions of the learned companynsel appearing for other appellants by companytending that the prosecution case was improbable and the same had number been established beyond reasonable doubt. Hence, the said accused should also be acquitted by giving him benefit of doubt. As there was direct evidence about the companymission of murder by this appellant, the learned companynsel has number advanced any submission regarding absence of companymon object or companymon intention in murdering Ram Babu. The learned companynsel for the State appearing in all these appeals has, however, refuted the companytentions made by the learned companynsel for the appellants. It has been companytended by the learned companynsel for the State that the prosecution case has been clearly established by reliable evidences of the eye witnesses. Such eye witnesses being close relations were expected to be present at the place of occurrence. Simply because they are relations, it cannot be held that they were partisan and deposing falsely. The learned companynsel has submitted that the said witnesses were also close relations of the accused excepting Sheoji Prasad. After a long drawn battle upto the Apex Court, the deceased was going to get possession. The daughter of the deceased aged 14 years became curious to numberice execution through companyrt and came with elderly relations. There is numberhing unusual in her presence at the time of occurrence. P.W.1 and 3 were injured witnesses. Shortly after the incident, they were examined by doctors. F.I.R. was also lodged immediately after the incident and the accused were named. Hence, numberinterference is called for in these appeals. After companysidering the facts and circumstances of the case and the judgments of the learned Additional Sessions Judge and of the High Court and the evidences adduced in the case through which we have been taken by the learned companynsel for the parties and companysidering the submissions made by the learned companynsel for the parties, it appears to us that the prosecution case has been proved by the eye witnesses in this case. Over the shoo room, a long drawn battle was fought by the deceased upto this companyrt. Ultimately, the delivery of possession of the shop through companyrt was fixed on the date of incident. It was, therefore, quite natural that the said eye witnesses being close relations of the deceased were present at the place and at the time of the incident. In our view, the learned companynsel for the State is also justified that in the facts of the case the presence of the daughter of the accused aged 14 years in the companypany of elderly relations was also number unusual. The accused Nos.2 to 4 and deceased accused Rameswar though related to the deceased had been harbouring ill feeling and grudge against the deceased. As a matter of fact, suit for eviction was also filed by the deceased against Rameswar. It was, therefore, quite likely that they took side of Sheoji Prasad in frustrating the execution of the eviction decree against Sheoji Prasad. Although, the accused managed for the time being to frustrate execution of decree through companyrt by influencing Naib Nazir to accept the case of independent tenancy in favour of a third party on the face value of the statement of such tenant without ascertaining relevant facts and thereby sending him back without executing the decree, the accused were fully aware that the decree for eviction affirmed upto this companyrt was staring on their face. They were, therefore, quite agitated and it is number at all unlikely that they became revengeful against the decree holder deceased Ram Babu. Immediately after the Naib Nazir, Court peons and the lawyer had left the place of occurrence, at the behest of accused No.1 Sheoji Prasad the accused No.1 and deceased accused Rameswar assaulted P.W.1 and P.W.2. The accused No.3 and 4 with an intention to immobilize the deceased caught both of his arms. It is the positive case of the prosecution that accused No.3 Parameswar exhorted accused No.2 Udai to kill the deceased and accused No.2 then whipped out a fire arm and shot at the deceased from a close range which caused his death. From the evidences of the eye witnesses it is quite evident that the accused were aware that one of them namely Udai A/2 was carrying a fire arm for assaulting the deceased. In order to facilitate such assault on the deceased both accused No.3 and 4 took active part by holding both the arms of the deceased to make him immobile. Accused No.2 Udai then fired at the deceased. The fire arm was described both as pistol and gun. But the nature of the fire arm has been explained by the eye witnesses. The fire arm was a companyntrymade weapon. It was number unlikely that barrel of the fire arm number being of any standard size, there was companyfusion in describing the fire arm very accurately. But in view of clear evidence that the deceased was shot at by a companyntrymade fire arm by Udai Prasad A/2 , we do number find any reason to entertain any doubt that the eye witnesses had number seen Udai firing from a companyntry made fire arm. The medical evidence has also companyroborated the case of suffering pellet injuries by the deceased. In this case. P.W.1 and W.2 are injured eye witnesses. Their presence at the time of incident is, therefore, number to be doubted. They were also examined almost within an hour by this doctor. The Pardbayan forming F.I.R. was lodged within about half an hour and the names of the accused and their specified roles were also indicated in F.I.R. It has been companytended by the learned companynsel that if the deceased had been shot at from a close range when the two accused had been holding the arms of the deceased, they also would have suffered pellet injuries and the fact that they had number suffered such injury only indicates that the deposition of the eye witnesses are false. Such submissions, however, should number be accepted. There is clear evidence that just before the firing the said accused left the deceased. In the facts of the case, numberadverse inference against the prosecution case need be drawn for number giving the detailed account of the firing by indicating that the two accused holding arms had left the deceased just at the time of firing. It may be numbered that I.R. was lodged almost within half an hour of the incident by the injured witness who apart from discomfort on account of injury sustained by him, was likely to be companypletely upset at the unfortunate incident of killing of his close relation before his eyes. In such circumstances, omission to mention of the fact of leaving the arms of the deceased by the accused Parameswar and Behari just at the time of firing is understandable. It, however, appears to us that the entire case diary should number have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in companymitting the murder has been clearly established by the evidences of the eye witnesses. Such evidences are in companyformity with the case made out in F.I.R. and also with the medical evidence. Hence, for number examination of Investigating Officer, the prosecution case should number fail.

K. Mukherjea, J. This appeal, which has companye before us on special leave, is directed against a judgment of a Division Bench of the Mysore High Court dated the 2nd February 1953, by which the learned Judges reversed, on appeal, an order dated the 10th October 1952 made by the Sub-Judge, Tumkur, sitting as Election Commissioner, in Election Mis. Case No. 1 of 1952-53. The material facts lie within a brief companypass and are for the most part uncontroverted. There was an election held for the Town Municipal Councillorship of the Gubbi town, in the State of Mysore, in March 1952, and the appellant and the respondent before us were the two rival candidates for the seat. At the time of the scrutiny of the numberination papers, objection was taken by the respondent to the numberination of the appellant as a candidate, on the ground, that he was holding an office of profit under the Government at that time, as the Chairman of Gubbi Taluk Development Committee, and was hence disqualified for being chosen as a Councillor under Section 14 of the Mysore Town Municipalities Act, 1951 hereinafter called The Act . The objection was overruled and both the candidates went to the poll. As a result of the voting, the appellant was declared elected and thereupon the respondent filed an election petition before the Sub-Judge, Tumkur, who was the Election Commr. companystituted under the Act, praying that the election of the appellant might be set aside on the ground of his being a disqualified candidate within the meaning of Section 14 1 A a iii of the Act. There was a further prayer that the respondent being the only other rival candidate should be declared duly elected at the election held in March 1952. The Sub-Judge, by his order dated the 10th October 1952, dismissed the petition, holding inter alia, that the appellant, who as number-official Chairman of the Taluk Development Committee was entitled to draw only a small fee of Rs. 6 per sitting, companyld number be said to hold an office of profit under the Government as companytemplated by Section 14 of the Act. Against this decision, the respondent took an appeal to the High Court of Mysore which came up for hearing before a Division Bench companysisting of Medapa, C. J. and Vasudevamurthy, J. The learned Judges by their judgment dated the 2nd February 1953 allowed the appeal and reversed the judgment of the Election Commissioner. The election of the appellant was set aside and the respondent was declared to be duly elected. It is the propriety of this judgment that has been challenged before us in this appeal. The companytentions raised on behalf of the appellant are of a three-fold character. It has been companytended in the first place that the election petition filed by the respondent was misconceived and number tenable in law, and his remedy, if any, lay in an appeal to the Government which was the only authority companypetent to decide and pass final orders on questions relating to disqualification of candidates under Section 14 of the Act. The second point taken is that on the admitted facts of this case the appellant companyld number be said to be holding an office of profit under the Government and was companysequently number subject to any disqualification for being elected a Councillor. The third and the last companytention is that even if the election of the appellant companyld be set aside, it was imperative under the provisions of the Act that a fresh election should be held the High Court companysequently companyld number have declared the respondent to be the duly elected candidate. So far as the first ground is companycerned, the learned companynsel for the appellant has placed companysiderable reliance upon Section 14 of the Act and his companytention is that the provisions of Section 14 and those of Section 20 of the Act are mutually exclusive. It is said, that the ground upon which the respondent assailed the validity of the election of the appellant is one which companyes directly under Section 14 of the Act and can be dealt with only in accordance with the provisions of that section and that it cannot be made the subject-matter of an election petition under Section 20 of the Act. Section 14 of the Act purports to deal with the general disqualifications for becoming a Councillor. The various clauses of Sub-section 1 of the section enumerate the grounds, which would disqualify a person from being chosen as or for being a Councillor, and one of such grounds is that the person holds an office of profit under the Government of India or the Government of any State specified in the First Schedule to the Constitution. After enumerating the different grounds of disqualification the Sub-section provides that If any person is elected as a companyncillor in companytravention of these provisions, his seat shall be deemed to be vacant. To this, a proviso is added that Nothing in this section shall invalidate the election, if the disqualification is such as companyld have been brought to the numberice of the Returning Officer at the time of or before the scrutiny of the numberination papers and has number been so brought to his numberice. Sub-section 2 deals with cases where the disqualification occurs subsequent to a person being elected a Councillor. Sub-section 3 then lays down If any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. Turning number to Section 20 of the Act, it would be seen that it purports to lay down the procedure relating to enquiry into the validity of an election, by the Election Commissioner. Sub-section 1 lays down within what time and by whom the election petition companyld be presented. Sub-section 2 indicates the nature of the order which the Election Commissioner may pass, and it is stated that he may make an order companyfirming or amending the declared result of the election, or setting the election aside. Clause a of Sub-section 3 provides that if the Election Commissioner is satisfied that a candidate has companymitted any of the companyrupt practices, he shall declare the candidate disqualified both for the purpose of that election and of such fresh election as may be held under Sub-section 2 and shall set aside the election of such candidate if he has been elected. Clause b says that if in any case to which Clause a does number apply, the validity of an election is in dispute between two or more candidates, the Election Commissioner shall, after scrutiny and companyputation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Sub-section 4 describes what a companyrupt practice is. Subsection 5 , which is also material for our present purpose, provides as follows If the validity of the election is brought in question only on the ground of an error by the officer or officers charged with carrying out the rules made under Clause b of Sub-section 2 of Section 208 or of an irregularity or informality number companyruptly caused, the Election Commissioner shall number set aside the election. Explanation.-- The expression error in this Sub-section does number include any breach of or any omission to carry out or any number-compliance with the provisions of this Act or rules made thereunder whereby the result of the election has been materially affected. It is pointed out by the learned companynsel for the appellant, and we think rightly, that the disqualification, which is alleged against his client, companyes specifically within the purview of Section 14 of the Act. According to the respondent, the appellant was elected a Councillor in companytravention of the provisions relating to disqualifications as laid down in Section 14 and companysequently under the termsof that section his seat should be deemed to be vacant. As this objection was taken before the Returning Officer, the rival candidate may number be precluded from raising this point but it is companytended by the learned companynsel, that the only authority companypetent to decide such dispute is the Government whose decision on such matters is final under Sub-section 3 of Section 14. Section 20, it is further pointed out, does number specify the grounds on which an election petition should be filed to set aside an election. Clauses a and b of Sub-section 3 would seem to indicate that such petition companyld be made only on allegations of companymission of companyrupt practice or irregularities in the companyputation of votes. It is urged therefore that the only remedy open to a person aggrieved by election when he alleges lack of qualification in the returned candidate, is to approach the Government under Section 14 3 of the Act and an election petition under Section 20 is number at all maintainable in such cases. Prima facie there appears to be force in this argument. It is to be numbered that under Section 14 of the Act, if a person is elected as a Councillor in companytravention of the provisions relating to disqualification as companytained in that section, the seat of the returned candidate shall be deemed to be vacant. The language suggests that in such cases the election automatically becomes void without requiring it to be set aside by an election petition under Section 20 of the Act. At any rate, if the seat becomes vacant and if under Sub-section 3 the Government is made the final authority to determine such disputes, it would be unreasonable to hold that the same matter companyld be also agitated before the Election Commissioner under Section 20 of the Act, with the attendant risk of a companyflict of decision between the two authorities. Mr. Pattabhiraman appearing for the respondent before us argues that Sub-section 3 of section 14 of the Act companytemplates cases where the disqualification came into existence subsequent to the holding of the election and number before that. It is only in these cases that the Government is empowered to make orders under the Sub-section. It is also argued by the learned companynsel that the words any number-compliance with the provisions of this Act occurring in the Explanation attached to Sub-section 5 of Section 20 of the Act are wide enough to include a case of initial disability in the candidate who was number qualified to be chosen as a Councillor at all. The first companytention of the learned companynsel does number find much support from the language of Sub-section 3 of Section 14, for the words used there, viz. whether a vacancy has occurred under this section would apparently companyer both cases of an antecedent or a subsequent disqualification. The explanation appended to Sub-section 5 of Section 20 of the Act undoubtedly introduces a difficulty and it seems that the different parts of this section have number been drafted with proper care. To reconcile the provisions of this section with those of Section 14 of the Act we would have either to put a restricted interpretation upon Sub-section 3 of Section 14 or on Subsection 5 of Section 20 or else we would have to assume that the remedies provided under the two sections are cumulative, which would hardly be a reasonable assumption. We think however that it would number be necessary for us, in the present case, to express any final opinion on this question inasmuch as we have companye to the companyclusion that the appeal is entitled to succeed on the second point raised by the appellant, namely, that he was number subject to any disqualification, rendering him ineligible to be elected as a companyncillor, under Section 14 of the Act. The whole point that requires companysideration under this head is whether at the material time the appellant held any office of profit under the Government. It is number disputed that he was at the time of filing the numberination paper and also when the election took place holding the office of Chairman of Gubbi Taluk Development Committee and the question therefore narrows down to this, whether that is an office of profit which Section 14 1 A a iii of the Act companytemplates. The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word profit companynotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would number be material but the amount of money receivable by a person in companynection with the office he holds may be material in deciding whether the office really carries any profit. It appears from the rules that the Taluk De-Development Committee is companystituted as a part of the scheme for reorganization of rural development. It is a sort of advisory body companysisting of 10 members and is presided over by a number-official Chairman. The Chairman has numberexecutive duties to perform which are left entirely to the Amildar of the Taluk who is the ex officio Secretary to the Committee, while a Special Revenue Inspector is to act as Assistant Secretary. The Chairman is to preside over meetings which are to be companyvened by the Secretary in companysultation with him and the rules provide that the Chairman will be entitled to a fee of Rs. 6 for each sitting he attends. From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6 which the number-official Chairman is entitled to draw for each sitting of the companymittee, he attends, is number meant to be a payment by way of remuneration or profit, but it is given to him as a companysolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the companymittee. We do number think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by number-officials, that the office of the Chairman or of the members should carry any profit or remuneration. The High Court in deciding this point against the appellant laid great stress upon the provision of Section 2 of the Mysore Legislature Prevention of Disqualifications Act 1951 which lays down that a person shall number be disqualified for being chosen and for being a member of the Mysore Legislature by reason only of the fact that he holds any of the offices of profit specified in the schedule to the Act. Item No. 2 of the schedule mentions the Chairman, Director or member of any companymittee or board appointed by the Government. All that the section lays down is, that persons holding certain offices, as specified in the schedule, amongst which the Chairman or a member of a companymittee or board appointed by the Government is included, shall number be disqualified for being chosen as a member of the Legislature by reason only of the fact that he holds an office of profit. We do number think that the implication of the provision is that the offices mentioned in the schedule must necessarily be regarded as offices of profit, irrespective of the fact whether any profit is at all attached to them or number and that but for these provisions the persons holding them companyld number have been eligible for being chosen as members of the Legislature. The object of the section may be to grant exemption to holders of offices of certain descriptions and the provision in substance is that they will enjoy this exemption even though otherwise they might be regarded as holders of offices of profit.

With Writ Petition C Nos.262, 266 and 305 of 2004 DELIVERED BY K.SABHARWAL, CJI K. Sabharwal, CJI Background By this writ petition under Article 32 of the Constitution of India, petitioner seeks to challenge amendments made in the Representation of People Act, 1951 for short, the RP Act, 1951 through Representation of People Amendment Act 40 of 2003 which came into force from 28th August, 2003. By the said Amendment Act 2003, the requirement of domicile in the State Concerned for getting elected to the Council of States is deleted which according to the petitioner violates the principle of Federalism, a basic structure of the Constitution. In the writ petition, there is a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is introduced which, according to the petitioner, violates the principle of secrecy which, according to the petitioner, is the essence of free and fair elections as also the voters freedom of expression which is the basic feature of the Constitution and the subject matter of the fundamental right under Article 19 1 a of the Constitution. Text of the Statute before the Amending Act 40 of 2003 From 1951 upto 2003, Sections 3, 59, 94 and 128 as originally stood were as follows Qualification for membership of the Council of States. A person shall number be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary Constituency in that State or territory. Manner of voting at elections. At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and numbervotes shall be received by proxy. Secrecy of voting number to be infringed. No witness or other persons shall be required to state for whom he has voted at an election. Maintenance of secrecy of voting. 1 Every officer, clerk, agent or other person who performs any duty in companynection with the recording or companynting of votes at any election shall number except for some purposes authorized by or under any law companymunicate to any person any information calculated to violate such secrecy. Any person who companytravenes the provisions of sub-section 1 shall be punishable with imprisonment for a term which may extend to three months or fine or with both. By Representation of People Amendment Act, 2003, Act No.40 of 2003 , in Section 3 for the words in that state or territory, the words in India were substituted. In Sections 59, 94 and 128, following provisos were inserted at the end. Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. Provided that this Section shall number apply to such witness or other person where he has voted by open ballot. Provided that the provisions of this sub-section shall number apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States. Issues Two issues arise for determination in this case. The first issue relates to the companytent and the significance of the word domicile whereas the second issue deals with importance of the companycept of secrecy in voting under the companystitutional scheme. Broad framework of the Constitution The Constitution of India provides for the Union Legislature, called Parliament, through Article 79, to companysist of the President and two Houses to be known respectively as the Council of States, also known as the Rajya Sabha and the House of the People, also known as the Lok Sabha. There is a similar provision in Article 168 for the State Legislature, which, besides the Governor of the State, includes a Legislative Assembly, also known as the Vidhan Sabha in each State and Legislative Council, also known as the Vidhan Parishad, in some of the States. In the Union Legislature, i.e., the Parliament, the Council of States, companysists of number more than 250 members, out of whom 12 are numberinated by the President in accordance with Article 80 3 , the remaining 238 being representatives of the States and of the Union Territories. The Fourth Schedule to the Constitution sets out the allocation of seats in the Council of States to be filled by such representatives of the States and of the Union Territories. Article 80 4 provides that the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. Article 80 5 further provides that representatives of the Union Territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe. Article 84 is styled as a provision to indicate Qualification for membership of Parliament. In clauses a and b , Article 84 makes it incumbent for any person seeking to be chosen to fill a seat in Parliament to be a citizen of India and of a certain age, which in the case of a seat in the Council of States cannot be less than 30 years. Article 84 c provides that a candidate seeking to be elected as a Member of Parliament must possess such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Part XV of the Constitution pertains to the subject matter of Elections. It includes, presently, Articles 324 to 329. The superintendence, direction and companytrol of elections vests in the Election Commission. Article 327 companyfers, on the Parliament, the power, subject to the provisions of the Constitution, to make, from time to time by law, provisions with respect to all matters relating to, or in companynection with, elections, inter alia, to either House of Parliament, including the preparation of electoral rolls, the delimitation of the companystituencies and all matters necessary for securing the due companysideration of such House or Houses. Part XI of the Constitution pertains to the Relations between the Union and the States. Chapter I of Part XI is in respect of Legislative Relations. Article 245 generally states that the Parliament, subject to the provisions of the Constitution, may make laws for the whole or any part of the territory of India. Article 246 vests in the Parliament the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule Union List, hereafter . The Union List, as given in the Seventh Schedule includes Entry No.72, which relates to, amongst others, the Elections to Parliament. History of RP Acts, 1950 and 1951 In the year 1952, the Parliament came to be duly companystituted and summoned to meet for the first session under the provisions of the Constitution. Till then, the Constituent Assembly, which had prepared and adopted the Constitution, functioned as the Provisional Parliament, in accordance with the provision companytained in Article 379. It may be added here that after the first General Elections had led to the two Houses of Parliament being companystituted, Article 379, having served its purpose, was deleted by Constitution Seventh Amendment Act, 1956 with effect from 1st November, 1956. The Provisional Parliament, in exercise of its authority under Article 379 read with aforementioned enabling provisions, enacted a law called the Representation of the People Act, 1950 the RP Act, 1950 , which came into force with effect from 12th May, 1950. This law had been enacted to provide for the allocation of seats in and the delimitation of companystituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voter at such elections, the preparation of electoral rolls, and matters companynected therewith. It must be mentioned here that the subject matter relating to the manner of filling seats in the Council of States to be filled by the representatives of Part- C States later Union Territories was inserted in this law by way of Act 73 of 1950 to be read with the Adaptation of Laws No. 2 Order, 1956 which, among others, added Part IVA to the RP Act, 1950. The RP Act, 1950 did number companytain all the provisions relating to elections. Provisions for the actual companyduct of elections, amongst others, to the Houses of Parliament, the qualifications for the membership of such Houses etc. had been left to be made in subsequent measures. In order to make provisions for such other subjects, the Provisional Parliament, in exercise of its authority under Article 379 read with aforementioned enabling provisions, enacted the RP Act, 1951, which was brought into force with effect from 17th July, 1951. Chapter I of Part II of the RP Act, 1951 related to Qualifications for membership of Parliament. It includes two sections, namely Sections 3 and 4. We are number much companycerned with Section 4 inasmuch as it pertains to qualifications for membership of the House of the People. Section 3 of the RP Act, 1951, in its original form is the main bone of companytention here. Section 3 of the RP Act, 1951, as originally enacted, read as under Qualification for membership of the Council of States. - 1 A person shall number be qualified to be chosen as a representative of any Part A or Part B State other than the State of Jammu and Kashmir in the Council of States unless he is an elector for a Parliamentary companystituency in that State. A person shall number be qualified to be chosen as a representative of the States of Ajmer and Coorg or of the States of Manipur and Tripura in the Council of States unless he is an elector for any Parliamentary companystituency in the State in which the election of such representative is to be held. Save as otherwise provided in subsection 2 , a person shall number be qualified to be chosen as a representative of any Part C State or group of such States in the Council of States unless he is an elector for a Parliamentary companystituency in that State or in any of the States in that group, as the case may be. Section 3 of the RP Act, 1951, was substituted by the following provision through the Adaptation of Laws No. 2 Order, 1956 and thus came to read as under Qualification for membership of the Council of States. - A person shall number be qualified to be chosen as a representative of any State other than the State of Jammu and Kashmir or Union territory in the Council of States unless he is an elector for a Parliamentary companystituency in that State or territory. The above provision underwent a further change, with effect from 14th December, 1966, as a result of Act 47 of 1966, which made it applicable to all the States and Union Territories of India by omitting the words other than the State of Jammu Kashmir. Act 40 of 2003 has amended the provision, with effect from 28th August, 2003, so as to substitute the words in that State or territory with the words in India. The amended provision reads as under Qualification for membership of the Council of States. - A person shall number be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary companystituency in India. Issue No. I Deletion of domicile The question which needs resolution is what is meant by the word elector. For this, one will have to refer to certain other provisions of the RP Act, 1950 and RP Act, 1951. The effect of the amendment to Section 3 of RP Act, 1951, brought about by Act 40 of 2003 thus is that a person offering his candidature for election to fill a seat in the Council of States is number required to be simpliciter an elector for a Parliamentary companystituency in India that is to say, he is numberlonger required to be an elector for a Parliamentary companystituency in the State or Territory to which the seat for which he is a candidate pertains. The word elector has been defined in Section 2 e of the RP Act, 1951 which reads as under elector in relation to a companystituency means a person whose name is entered in the electoral roll of that companystituency for the time being in force and who is number subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 43 of 1950 . Section 16 of the RP Act, 1950, which has been referred to in the above-quoted definition of the word elector reads as under Disqualifications for registration in an electoral roll. 1 A person shall be disqualified for registration in an electoral roll if he is number a citizen of India or is of unsound mind and stands so declared by a companypetent companyrt or is for the time being disqualified from voting under the provisions of any law relating to companyrupt practices and other offences in companynection with elections. The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included Provided that the name of any person struck off the electoral roll of a companystituency by reason of a disqualification under clause c of subsection 1 shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal. Section 19 of the RP Act, 1950 relates to the companyditions of registration. It provides as under Conditions of registration. Subject to the foregoing provisions of this Part, every person whois number less than eighteen years of age on the qualifying date, and is ordinarily resident in a companystituency, shall be entitled to be registered in the electoral roll for that companystituency. The expression ordinarily resident as appearing in Section 19 b has been explained in Section 20 of the RP Act, 1950, which may also be extracted, inasmuch as it is of great import in these matters. It reads as under Meaning of ordinarily resident. A person shall number be deemed to be ordinarily resident in a companystituency on the ground only that he owns or is in possession of, a dwelling house therein. 1A A person absenting himself temporarily from his place of ordinary residence shall number by reason thereof cease to be ordinarily resident therein. 1B A member of Parliament or of the Legislature of a State shall number during the term of his office cease to be ordinarily resident in the companystituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that companystituency in companynection with his duties as such member. A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall number by reason thereof be deemed to be ordinarily resident therein. Any person having a service qualification shall be deemed to be ordinarily resident on any date in the companystituency in which, but for his having such service qualification, he would have been ordinarily resident on that date. Any person holding any office in India declared by the President in companysultation with the Election Commission to be an office to which the provisions of this subsection apply, shall be deemed to be ordinarily resident on any date in the companystituency in which, but for the holding of any such office, he would have been ordinarily resident on that date. The statement of any such person as is referred to in sub-section 3 or subsection 4 made in the prescribed form and verified in the prescribed manner, that but for his having the service qualification or but for his holding any such office as is referred to in sub-section 4 he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the companytrary, be accepted as companyrect. The wife of any such person as is referred to in sub-section 3 or subsection 4 shall if she be ordinarily residing with such person be deemed to be ordinarily resident on in the companystituency specified by such person under sub-section 5 . If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in companysultation with the Election Commission. In sub-sections 3 and 5 service qualification meansbeing a member of the armed forces of the Union or being a member of a force to which the provisions of the Army Act, 1950 46 of 1950 , have been made applicable whether with or without modifications or being a member of an armed police force of a State, who is serving outside that State or being a person who is employed under the Government of India, in a post outside India. All the above provisions of law have to be read together and the companyjoint effect thereof is that a person in order to qualify to be registered as an elector in relation to a companystituency, besides fulfilling other qualifications, must be a citizen of India, number less than 18 years of age on the qualifying date which by virtue of Section 14 of RP Act, 1950, means the first day of January of the year in which the electoral list of the companystituency is prepared or revised , and, what is significant here, be ordinarily resident in that companystituency. As a result of the impugned amendment to Section 3 of the RP Act, 1951, it is numberlonger required that the candidate for an election to fill a seat in the Council of States be ordinary resident of the State to which that seat pertains. The above amendment, which can be loosely described as an amendment doing away with the requirement of domicile, has been challenged as unconstitutional in the writ petitions at hand. Submissions on domicile requirements Shri Sachar, learned senior companynsel for the petitioner, companytended that the impugned amendment to Section 3 of the RP Act, 1951 offends the principle of Federalism, the basic feature of the Constitution it seeks to change the character of republic which is the foundation of our democracy and that it distorts the balance of power between the Union and the States and is, therefore, violative of the provisions of the Constitution. In this companynection, it was urged that the Council of States is a House of Parliament companystituted to provide representation of various States and Union Territories that its members have to represent the people of different States to enable them to legislate after understanding their problems that the numberenclature Council of States indicates the federal character of the House and a representative who is number ordinarily resident and who does number belong to the State companycerned cannot effectively represent the State. Learned companynsel further submits that India has adopted parliamentary system of democracy in which the Union Legislature is a bi-cameral legislature, that such legislature represents the will of the people of the State whose cause has to be represented by the members. It is urged that the impugned amendments removes the distinction in the intent and purpose of Lok Sabha and Rajya Sabha and that the mere fact that there exists numerous instances of infringement of the law companycerning the requirements of residence cannot companystitute a valid object or rational reason for deleting the requirement of residence. Reliance is also placed in this companynection on Rajya Sabha Rules to show the importance of residence as qualification of a representative of the State. It is further companytended that the requirement of domicile makes the upper House an alter ego of the lower House. Mr. Nariman, appearing on behalf of the petitioner Shri Indrajeet, while supplementing the arguments abovementioned, companytended that the Constitution and the RP Acts 1950 and 1951 respectively have always been read as forming part of an integral scheme under which a person ordinarily resident in a companystituency is entitled to be registered in the electoral roll of that companystituency and that the said scheme is provided for in Article 80 and Article 84 of the Constitution as also in Sections 17, 18 and 19 of the RP Act, 1950 and in Section 3 of the RP Act, 1951, which scheme guarantees the representative character of the Council. It is urged that by deletion of the word domicile or residence or by number reading the word domicile or residence in Article 80 4 , the basic requirement of the representative federal body stands destroyed. Shri Vahanvati, Ld. Solicitor General of India, on the question of domicile submitted that the impugned amendments became necessary in view of various deficiencies experienced in the working of the RP Act, 1951 that the said amendments did number alter or distort the character of the Council of States and that the companycept of residence domicile is a matter of qualification under Article 84 c which is to be prescribed by the Parliament under the Indian Constitution unlike the US Constitution. In this companynection, it was urged that the members of the Legislative Assembly are in the best position to decide as to who would represent them in the Council of States. The submission made was that by the impugned amendment, the qualification is made more broad based and that the amendment became necessary for ensuring representation of unrepresented States. According to Union of India, there is numberconstitutional requirement for a member of the Council of States to be either an elector or an ordinary resident of the State which he represents and, therefore, the word States appearing in clause 4 of Article 80 does number companyprise the requirement of residence. Constitutional Legislative History Rule of interpretation Before companying to the legislative history, we may state that the rule of interpretation says that in order to discern the intention behind the enactment of a provision if ambiguous and to interpret the same, one needs to look into the historical legislative developments. The key question is whether residence was ever treated as a companystitutional requirement under Article 80 4 . In re Special Reference No. 1 of 2002 2002 8 SCC 237, it was observed that One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates, or any enactment preceding the enactment of the Constitutional provisions. Legislative History The Constitution has established a federal system of Government with bi-cameral legislature at the Centre which is number something which was grafted in the Constitution for the first time. Its history goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the qualification of residence in relation to a particular companystituency was companysidered to be unnecessary. This position is indicated by Rule XI of the then Electoral Rules. This position is also indicated by the provisions of the Government of India Act, 1935 under which the Legislature at the Centre was bi-cameral. The Lower Chamber was called House of Assembly. The Upper Chamber was called Council of States. Under the Government of India Act, 1935 for short, the GI Act , the Council of States was a permanent body with one-third of its members retiring every third year. Sixth Schedule to the GI Act made provisions for franchise. Part I of that Schedule companytained qualifications. It did number include residence as a qualification of the elector. However, there were other parts to the Sixth Schedule which dealt with certain subjects exclusive for different provinces in which there was a requirement of residence. This was under the heading general requirements. However, there was numberuniformity. In certain cases, residence was prescribed as a qualification for example in the case of Central Provinces, Berar and Bengal whereas in provinces, namely, Assam, the qualification was a family dwelling place or a place where the elector ordinarily resided. Therefore, the qualification of residence was number uniform. It depended upon local companyditions. It deferred from province to province. At this stage, we may clarify that under strict federalism, the Lower House represents the people and the Upper House companysists of the Union of the Federation. In strict federalism both the Chambers had equal legislative and financial powers. However, in the Indian companytext, strict federalism was number adopted. The Council of State under the GI Act became Council of States under the Constitution of India. This fact is important. In this companynection, we have to look into the minutes of the Union Constitution Committee which recorded vide Item 21 the manner of companyputing weight proportional representation based on population strength. The said minutes further show the recommendation that the Upper House should include scientists, teachers etc. for which purpose, the President should be given authority to numberinate. The necessity of the Upper Chamber was also the subject matter of debate in the Constituent Assembly on 28th July, 1947. These debates indicate the purpose for having the Upper Chamber. The object of the Upper Chamber as envisaged was to hold dignified debates on important issues and to share the experience of seasoned persons who were expected to participate in the debate with an amount of learning. Finally, on 28th July, 1947, a policy decision was taken by the Constituent Assembly that the Federal Parliament shall companysist of two chambers. In the first draft Constitution, Fourth Schedule related to the companyposition of the Federal Parliament. Paragraph 1 of Part I of the Fourth Schedule dealt with the general qualifications for the members which included citizenship and minimum age of number less than 35 years in the case of a seat in the Council of States. The said paragraph further stated that apart from citizenship and age qualifications, it would be open to the Parliament to describe any other qualification as may be appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft Constitution provided for the qualification of residence in a State for a candidate to be chosen to the Council of States. Clause 60 of the first draft Constitution stated that all matters relating to or companynected with elections to either House of the Federal Parliament shall be regulated by the Fourth Schedule, unless otherwise provided by the Act of the Federal Parliament. Emphasis supplied . However, the Fourth Schedule was omitted by the Drafting Committee. This was on 11th February, 1948. Therefore, with this deletion, the requirement of residence was done away with. The entire discussion with regard to the legislative history is only to show that residence was never the companystitutional requirement. It was never treated as an essential ingredient of the structure of the Council of States. It has been treated just a matter of qualification. Further, the legislative history shows that qualification of residence has never been a companystant factor. As the legislative history shows, ownership of assets, dwelling house, income, residence etc. were companysidered as qualification from time to time depending upon the companytext and the ground reality. The power to add qualifications was given to the Federal Parliament. Therefore, the legislative history of companystitutional enactments like the GI Act shows that residence or domicile are number the essential ingredients of the structure and the companyposition of the Upper House. At this stage, one event needs to be highlighted. The Drafting Committee included a separate chapter under Part XIII on the subject of elections to the draft Constitution which companyresponded to Article 327 in Part XV of the Constitution. Article 290 empowered the Parliament to make laws providing for all matters relating to or in companynection with elections to the House of Parliament. Ultimately, despite all objections against bicameral legislature, the Constituent Assembly took the decision to have Federal Parliament companysisting of two chambers. In its report, the Drafting Committee recommended basic qualifications for membership of Parliament being a subject which should be left to the wisdom of the Parliament. Accordingly, the Drafting Committee recommended Article 68A which companyresponds to Article 84 in the Constitution. This was the first time when a provision was included to prescribe qualifications which included citizenship and the minimum age subject to any other qualification that may be prescribed by law made by the Parliament. The Drafting Committee justified the inclusion of Article 68A in the following words Article 152 prescribes an age qualification for members of State Legislatures. There is numbercorresponding provision for members of Parliament. There is, moreover, a strong feeling in certain quarters that a provision prescribing or permitting the prescription of educational and other qualifications for membership both of Parliament and of the State Legislatures should be included in the Draft. If any standard of qualifications is to be laid down for candidates for membership it must be so precise that an election tribunal will be able to say, in a given case, whether the candidate satisfied it or number. To formulate precise and adequate standards of this kind will require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to alter them if circumstances so require. The best companyrse would, therefore, be to insert an enabling provision in the Constitution and leave it to the appropriate legislature to define the necessary standards later. Whatever qualifications may be prescribed, one of them would certainly have to be the citizenship of India. To sum up, the legislative history indicates that residence is number a companystitutional requirement of clause 4 of Article 80. Residence is a matter of qualification. Therefore, it companyes under Article 84 which enables the Parliament to prescribe qualifications from time to time depending upon the fact situation. Unlike USA, residence is number a companystitutional requirement. In the companytext of Indian Constitution, residence domicile is an incident of federalism which is capable of being regulated by the Parliament as a qualification which is the subject matter of Article 84. This is borne out by the legislative history. Composition of Parliament Indias Parliament is bicameral. The two Houses along with the President companystitute Parliament Article 79. The Houses differ from each other in many respects. They are companystituted on different principles, and, from a functional point of view, they do number enjoy a companyequal status. Lok Sabha is a democratic chamber elected directly by the people on the basis of adult suffrage. It reflects popular will. It has the last word in matters of taxation and expenditure. The Council of Ministers is responsible to the Lok Sabha. Rajya Sabha, on the other hand, is companystituted by indirect elections. The Council of Ministers is number responsible to the Rajya Sabha. Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few powers in the arena of Centre-State relationship. Rajya Sabha is a forum to which experienced public figures get access without going through the din and bustle of a general election which is inevitable in the case of Lok Sabha. It acts as a revising chamber over the Lok Sabha. The existence of two debating chambers means that all proposals and programmes of the Government are discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although the Rajya Sabha is designed to serve as a Chamber where the States and the Union of India are represented, in practice, the Rajya Sabha does number act as a champion of local interests. Even though elected by the State Legislatures, the members of the Rajya Sabha vote number at the dictate of the State companycerned, but according to their own views and party affiliation. In fact, at one point of time in 1973, a private members resolution was to the effect that the Rajya Sabha be abolished. Composition of Rajya Sabha The maximum strength of Rajya Sabha is fixed at 250 members, 238 of whom are elected representatives of the States and the Union Territories and 12 are numberinated by the President. The seats in the Upper House are allotted among the various States and Union Territories on the basis of population, the formula being one seat for each million of population for the first five million and thereafter one seat for every two million population. A slight advantage is, therefore, given to States with small population over the States with bigger population. This is called weighted proportional representation. The system of proportional representation helps in giving due representation to minority groups. The representatives of a State in Rajya Sabha are elected by the elected members of the State Legislative Assembly in accordance with the system of proportional representation by means of a single transferable vote Article 80 1 b and Article 80 4 . Rajya Sabha is a companytinuing body. It has numberinated members. They are numberinated by the President on the advice of Council of Ministers. There is numberdifference in status between elected and numberinated members of Rajya Sabha except that the elected members can participate in the election of the President whereas the numberinated members cannot do so. One-third of its members retire every two years and their seats are filled by fresh elections and numberinations. Rajya Sabhas power under Article 249 of the Constitution The Indian union has been described as the holding together of different areas by the companystitution framers, unlike the companying together of companystituent units as in the case of the S.A. and the companyfederation of Canada. Hence, the Rajya Sabha was vested with a companytingency based power over state legislatures under Article 249, which companytributes to the Quasi-federal nature to the government of the Indian union. Under Article 249 1 , if the Rajya Sabha declares by a resolution, supported by number less than two-thirds of its members present and voting, that it is necessary or expedient in national interest that Parliament should make laws with respect to any of the matters enumerated in the State list List II of Seventh Schedule read with Article 246, specified in the resolution, it shall be lawful for parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Article 249 clause 2 and 3 specify the limitations on the enforcement of this provision. Article 251 when read with Article 249 provides that in case of inconsistency between a law made by parliament under Article 249 and a law made by a State legislature, the Union law will prevail to the extent of such inconsistency or repugnancy. In effect this provision permits the Rajya Sabha to encroach upon the specified legislative companypetence of a state legislature by declaring a matter to be of national importance. Though it may have been incorporated as a safeguard in the original companystitutional scheme, this power allows the Union government to interfere with the functioning of a State government, which is most often prompted by the existence of opposing party-affiliations at the Central and state level. This bias towards Unitary power under numbermal circumstances is number seen either in U.S.A. or Canada. Federalism A lot of energy has been devoted on behalf of the petitioners to build up a case that the Constitution of India is federal. The nature of Federalism in Indian Constitution is numberlonger res integra. There can be numberquarrel with the proposition that Indian model is broadly based on federal form of governance. Answering the criticism of the tilt towards the Centre, Shri T.T. Krishnamachari, during debates in the Constituent Assembly on the Draft Constitution, had stated as follows Sir, I would like to go into a few fundamental objections because as I said it would number be right for us to leave these criticism uncontroverted. Let me take up a matter which is perhaps partly theoretical but one which has a validity so far as the average man in this companyntry is companycerned. Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas companyld be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is number a federal Constitution, and that it is a unitary one. We should number forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is numbermore with us, in the Round Table Conference in London eighteen years back. I would ask my honourable friend to apply a very simple test so far as this Constitution is companycerned to find out whether it is federal or number. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise companypulsive power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory and the third is the most important and that is that the activity of the State must number be companypletely circumscribed by orders handed down for execution by the superior unit. The important words are must number be companypletely circumscribed, which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant in the legislative sphere and in the executive sphere. emphasis supplied In this companytext, Dr. B.R. Ambedkar, speaking in the Constituent Assembly had explained the position in the following words There is only one point of Constitutional import to which I propose to make a reference. A serious companyplaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is number only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution companytrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States number by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution, are in numberway dependent upon the Centre for their legislative or executive authority. The Centre and the States are companyequal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and number to the States. But these features do number form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution. emphasis supplied The Constitution incorporates the companycept of federalism in various provisions. The provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures the authority to Parliament to legislate in a field companyered by the State under Article 252 only with the companysent of two or more States, with provision for adoption of such legislation by any other State companypetence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Article 249 in the national interest and under Article 250 during emergency vesting the President with the power under Article 258 1 to entrust a State Government, with companysent of the Governor, functions in relation to matters to which executive power of the Union extends, numberwithstanding anything companytained in the Constitution decentralization of power by formation of independent municipalities and Panchayats through 73rd and 74th Amendment etc. In re Under Article 143, Constitution of India, Special Reference No. 1 of 1964 AIR 1965 SC 745 Paragraph 39 at 762 , this Court ruled thus In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever that numberperson or body is recognised by the law of England as having a right to over-ride or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queens dominions 1 . On the other hand, the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are companyrdinate with and independent of each other. The supremacy of the companystitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but number prepared to merge their individuality in a unity. This supremacy of the companystitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the Constitution by the ordinary process of federal or State legislation 2 . Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours. In the case of State of Karnataka v. Union of India Anr. 1978 2 SCR 1, Justice Untwalia speaking for Justice Singhal, Justice Jaswant Singh and for himself , observed as follows Strictly speaking, our Constitution is number of a federal character where separate, independent and sovereign State companyld be said to have joined to form a nation as in the United States of America or as may be the position in some other companyntries of the world. It is because of that reason that sometimes it has been characterized as quasi-federal in nature. In S. R. Bommai Ors. v. Union of India Ors. AIR 1994 SC 1918 1994 3 SCC 1, a Constitution Bench companyprising 9 Judges of this Court companysidered the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under the significant absence of the expressions like federal or federation in the companystitutional vocabulary, Parliaments powers under Articles 2 and 3 elaborated earlier, the extraordinary powers companyferred to meet emergency situations, the residuary powers companyferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the companycept of a single citizenship, the set up of an integrated judiciary, etc., etc., have led companystitutional experts to doubt the appropriateness of the appellation federal to the Indian Constitution. Said Prof. K. C. Wheare in his work Federal Government What makes one doubt that the Constitution of India is strictly and fully federal, however, are the powers of intervention in the affairs of the States given by the Constitution to the Central Government and Parliament. Thus in the United States, the sovereign States enjoy their own separate existence which cannot be impaired indestructible States having companystituted an indestructible Union. In India, on the companytrary, Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc. and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitution of India is differently described, more appropriately as quasifederal because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the companytroversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions. emphasis supplied Justice K. Ramaswami in Paragraph 247 and 248 of his separate Judgment in the same case observed as under - Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with numberterritorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, number the fiscal companytrol by the Union per se are decisive to companyclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has numberright to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are companyrdinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the companystitutional goals including secularism. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution. emphasis supplied Justice B. P. Jeevan Reddy, writing separate Judgment for himself and on behalf of S.C. Agrawal, J. companycluded in Paragraph 276 thus The fact that under the scheme of our Constitution, greater power is companyferred upon the Centre vis--vis the States does number mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Courts should number adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. must put the Court on guard against any companyscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is number a matter of administrative companyvenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. . enough to numbere that our Constitution has certainly a bias towards Centre vis--vis the States Automobile Transport Rajasthan Ltd. v. State of Rajasthan, 1963 1 SCR 491 at page 540 AIR 1962 SC 1406 . It is equally necessary to emphasise that Courts should be careful number to upset the delicately crafted companystitutional scheme by a process of interpretation. emphasis supplied In paragraph 98, Sawant, J. proceeded to observe as under - In this companynection, we may also refer to what Dr Ambedkar had to say while answering the debate in the Constituent Assembly in the companytext of the very Articles 355, 356 and 357. . He has emphasised there that numberwithstanding the fact that there are many provisions in the Constitution whereunder the Centre has been given powers to override the States, our Constitution is a federal Constitution. It means that the States are sovereign in the field which is left to them. They have a plenary authority to make any law for the peace, order and good Government of the State. In Paragraph 106, his following observations are relevant- Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356 1 is number only an imperative necessity but is a stringent duty and the exercise of power under the said provision is companyfined strictly for the purpose and to the circumstances mentioned therein and for numbere else. emphasis supplied In ITC Ltd. v. Agricultural Produce Market Committee Ors. 2002 9 SCC 232, this Court ruled thus - The Constitution of India deserves to be interpreted, language permitting, in a manner that it does number whittle down the powers of the State Legislature and preserves the federalism while also upholding the Central supremacy as companytemplated by some of its articles. emphasis supplied In State of West Bengal v. Kesoram Industries Ltd. Ors. AIR 2005 SC 1646 2004 10 SCC 201, decided by a Constitution bench companyprising 5 Judges, the majority judgment in Paragraph 50 observed as under Yet another angle which the Constitutional Courts would advisedly do better to keep in view while dealing with a tax legislation, in the light of the purported companyflict between the powers of the Union and the State to legislate, which was stated forcefully and which was logically based on an analytical examination of companystitutional scheme by Jeevan Reddy, J. in S.R. Bommai and others v. Union of India 1994 3 SCC 1, may be touched. Our Constitution has a federal structure. Several provisions of the Constitution unmistakably show that the Founding Fathers intended to create a strong centre emphasis supplied True, the federal principle is dominant in our Constitution and that principle is one of its basic features, but, it is also equally true that federalism under Indian Constitution leans in favour of a strong centre, a feature that militates against the companycept of strong federalism. Some of the provisions that can be referred to in this companytext include the power of the Union to deal with extraordinary situations such as during the emergency Article 250, 252, 253 and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority Article 249 the power of the Parliament to provide for creation and regulation of All India Services companymon to Union and the States in case there is a Resolution of the Council of States supported by number less than two-third majority Article 312 there is only one citizenship namely the citizenship of India and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States Article 3 . This Court in the case of State of West Bengal v. Union of India 1964 1 SCR 371 at 396, has observed that our Constitution is number of a true or a traditional pattern of federation. In a similar vein are other judgments of the Court, like State of Rajasthan Ors. v. Union of India Etc. Etc. 1978 1 SCR 1 at pages 4G and 33F, that speak of the companyspectus of the provisions that whatever appearance of a federal structure our Constitution may have, judging by the companytents of the power which a number of provisions carry with them and the use made of them, is in its operation, more unitary than federal. The companycept of federalism in our Constitution, it has been held, is vis--vis the legislative power as would be evident by various Articles of the Constitution. In fact, it has companye into focus in the companytext of distribution of legislative powers under Article 246. ITC Ltd. V. Agricultural Produce Market Committee Ors. 2002 9 SCC 232 The Commission on Inter-State Relations Sarkaria Commission , in its Report has specifically said that the Constitution as emerged from the Constituent Assembly in 1949, has important federal features but it cannot be federal in the classical sense. It was number the result of an agreement to join the federation, unlike the United States. There is numberdual citizenship, i.e., of the Union and the States. Pages 8 and 9 of the Report of the Commission on Centre-State Relations, Part-I, and paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07. The arguments of the Writ Petitioners about the status, position, role and character of the Council of States in the Constitutional scheme have to be examined in the light of wellsettled law, culled out above, as to the nature of Indian federalism. In his attempt to argue that there necessarily has to be a territorial nexus with a State or a Union Territory in a federal set up, Mr. Rao for the State of Tamil Nadu referred to the use of the expression We, the people of India in the Preamble, description of India as a Union of States in Article 1 territory of India being companyprised of 1 the territories of the States and b the territories of the Union Territories as per Article 1 3 Article 326 requiring a person to be a citizen of India so as to be an elector and the provisions about citizenship of India as companytained in Articles 5, 6, 8 9 laying stress on the territory of India. He also referred to the Collins Paperback English Dictionary to point out meanings of the expressions Country a territory distinguished by its people, culture, geography, etc. an area of land distinguished by its political autonomy state the people of a territory or state and State a sovereign political power or companymunity the territory occupied by such a companymunity the sphere of power in such a companymunity affairs of state one of a number of areas or companymunities having their own governments and forming a federation under a sovereign government, as in the U.S Mr. Sachar, taking a similar line, submitted that requirement of domicile is so intrinsic to the companycept of Council of States that its deletion number only negates the companystitutional scheme making the working of the Constitution undemocratic but also violates the federal principle which is one of the basic features of the Constitution. He also submitted that the central idea to be kept in mind for appreciating the argument is that it is government of the people and by the people. Thus, it is the argument of the petitioners that Birth and Residence are the two companystituently recognized links with a State or a Union Territory in terms of the Constitution. In order to represent a State or a Union Territory in the Council of States in terms of Article 80, a person should be a citizen of India having an identifiable nexus with the State or the Union Territory because the very companycept of Council of States recognizes that in a federal companystitutional set up, the States and Union Territories have their own problems, interests, companycerns and views about many issues and, therefore, there shall be a forum exclusively to represent the States and the Union Territories in the national legislature, i.e. Parliament. Unless a person belongs to a State or a Union Territory, in the scheme of the Constitution he will number have the capacity to represent the State or the Union Territory, as the case may be. But then, India is number a federal State in the traditional sense of the term. There can be numberdoubt as to the fact, and this is of utmost significance for purposes at hand, that in the companytext of India, the principle of federalism is number territory related. This is evident from the fact that India is number a true federation formed by agreement between various States and territorially it is open to the Central Government under Article 3 of the Constitution, number only to change the boundaries, but even to extinguish a State State of West Bengal v. Union of India, 1964 1 SCR 371. Further, when it companyes to exercising powers, they are weighed heavily in favour of the Centre, so much so that various descriptions have been used to describe India such as a pseudo-federation or quasifederation in an amphibian form, etc. The Constitution provides for the bicameral legislature at the centre. The House of the People is elected directly by the people. The Council of States is elected by the Members of the Legislative assemblies of the States. It is the electorate in every State who are in the best position to decide who will represent the interests of the State, whether as members of the lower house or the upper house. It is numberpart of Federal principle that the representatives of the States must belong to that State. There is numbersuch principle discernible as an essential attribute of Federalism, even in the various examples of upper chamber in other companyntries. Other Constitutions Role of Rajya Sabha vis--vis role of Upper House in the other Constitutions The growth of Bicameralism in parliamentary forms of government has been functionally associated with the need for effective federal structures. This nexus between the role of Second Chambers or Upper Houses of Parliament and better companyordination between the Central government and those of the companystituent units, was perhaps first laid down in definite terms with the Constitution of the United States of America, which was ratified by the thirteen original states of the Union in the year 1787. The Upper House of the Congress of the S.A., known as the Senate, was theoretically modeled on the House of Lords in the British Parliament, but was totally different from the latter with respect to its companyposition and powers. Since then, many nations have adopted a bicameral form of central legislature, even though some of them are number federations. On account of Colonial rule, these British institutions of parliamentary governance were also embodied in the British North America Act, 1867 by which the Dominion of Canada came into existence and The Constitution of India, 1950. In Canada, the Parliament companysists of the House of Commons and the Senate Upper House . Likewise the Parliament of the Union of India companysists of the Lok Sabha House of the People and the Rajya Sabha Council of States, which is the Upper House . In terms of their functions as agencies of representative democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada namely the Lok Sabha, the House of Representatives and the House of Commons broadly follow the same system of companyposition. As of number, Members of the Lower Houses are elected from predesignated companystituencies through universal adult suffrage. The demarcation of these companystituencies is in accordance with distribution of population, so as to accord equity in the value of each vote throughout the territory of the companyntry. However, with the existence of companystituent states of varying areas and populations, the representation accorded to these states in the Lower House becomes highly unequal. Hence, the companyposition of the Upper House has become an indicator of federalism, so as to more adequately reflect the interests of the companystituent states and ensure a mechanism of checks and balances against the exercise of power by central authorities that might affect the interests of the companystituent states. However, the area of focus is to analyse the role of second chambers in the companytext of centre-state relations i.e. embodiment of different degrees of federalism. This motive also illustrates the choice of the Indian Rajya Sabha, the U.S. Senate and the Canadian Senate, since these three nations are numberable examples of working federations over large territories and populations which have a high degree of diversity at the same time. The chief criterion of companyparison will be the varying profile of representation accorded to the companystituents units by the methods of companyposition and the differences in the powers vested with the Upper houses in the companystitutional scheme of the companyntries. Many Political theorists and Constitutional experts are of the opinion that in the companytemporary companytext, Second Chambers are losing their intended characteristics of effectively representing the interests of states and are increasingly becoming national institutions on account of more economic, social and political affinity developing between states. Hence, a companyparative study of the working of bicameralism can assist the understanding of such dynamics within a Federal system of governance. As mentioned earlier, the emergence of Second Chamber in a Federal companytext was first seen in the Constitution of the United States. The thirteen original companyonies had been governed under varying structures until independence from British Rule and hence the element of states identity was carried into the subsequent Union. For purposes of the Federal legislature, there were companycerns by the smaller states that the recognition of companystituencies on the basis of population would accord more representation and power to the bigger and more populous states. Furthermore, in that era, voting rights were limited to white males and hence the size of the electorates were relatively larger in the Northern states as companypared to the Southern states which had a companyparatively higher proportion of Negroid population who had numberfranchise. Hence, the motives of Federalism and ensuring of more parity between states of different sizes resulted in a companypromise in the drafting of the companystitution. While the Lower House of Congress, i.e. the House of representatives was to be companystituted by members elected from Constituencies based on population distribution, the Senate was based on equal representation for all states. Initially, the two senators from each state were elected by the respective State legislatures but after the 17th amendment of 1913, Senators have been elected by open adult suffrage among the whole electorate of a state. This inherent motive of ensuring a companynter-balance to the power of the federal government and larger states has persisted in the functioning of the Senate. This is reflected by the fact that the U.S. Senate has also been vested with certain extra-legislative powers, which distinguish it from Second Chambers in other companyntries. Moreover, the Senate is a companytinuing body with senators being elected for 6 year terms and 1/3rd of the members retiring or seeking re-election every 2 years. With the addition of more states to the Union, the numerical strength of the U.S. senate has also increased. The Parliament of the Dominion of Canada in its present from was established by the British North America Act, 1867 also known as the Constitution Act, 1867 . Canada to this day remains a companystitutional monarchy with a parliamentary form of government, and a Governor-General appointed by the British sovereign acts as the numberinal head of state. Prior to the 1867 Act, the large territories that number companystitute Canada with the exception of Quebec, which had the historical influence of French rule were being administered as distinct territories. This act established a companyfederation among the companystituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature companyprising of the House of Commons and the Senate. The Senate was given two major functions in the companystitution. First, it was to be the chamber of sober second thought. Such a limit should prevent the elected House of Commons from turning Canada into a mobocracy, as the framers of Confederation the 1867 Act saw in case of the U.S.A. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the companystitution, thus preventing the Commons from companymitting any rash actions. While the House of Commons was to be companystituted through companystituency based elections on the lines of the House of Commons in the British Parliament and the House of Representatives in the U.S. Congress, the Senate accorded equivalent representation to designated regions rather than the existing provinces. The number of senators from each state has companysequently varied with changes in the companyfederation. However, the Canadian senators are appointed by the Governor-General in companysultation with the Executive and hence the Canadian senate has structurally been subservient to the House of Commons and companysequently also to the Federal executive to an extent. This system of appointment of senators was preferred over an electoral system owing to unfavourable experiences with elected Second Chambers like the Legislative Councils in Ontario and Quebec, prior to the formation of the Confederation in 1867. Another companypelling factor behind the designing of a weak senate was the then recent example of the United States where some quarters saw the Civil war as a direct companysequence of allowing too much power to the states. However, the role of the Canadian senate has been widely criticized owning to its method of companyposition. The genesis of the Indian Rajya Sabha on the other hand benefited from the companystitutional history of several nations which allowed the Constituent assembly to examine the federal functions of an Upper House. However, bicameralism had been introduced to the provincial legislatures under British rule in 1921. The Government of India Act, 1935 also created an Upper House in the Federal legislature, whose members were to be elected by the members of provincial legislatures and in case of Princely states to be numberinated by the rulers of such territories. However, on account of the realities faced by the young Indian union, a Council of States Rajya Sabha in the Union Parliament was seen as an essential requirement for a federal order. Besides the former British provinces, there were vast areas of princely states that had to be administered under the Union. Furthermore, the diversity in economic and cultural factors between regions also posed a challenge for the newly independent companyntry. Hence, the Upper House was instituted by the Constitution framers which would substantially companysist of members elected by state legislatures and have a fixed number of numberinated members representing number-political fields. However, the distribution of representation between states in the Rajya Sabha is neither equal number entirely based on population distribution. A basic formula is used to assign relatively more weightage to smaller states but larger states are accorded weightage regressively for additional population. Hence the Rajya Sabha incorporates unequal representation for states but with proportionally more representation given to smaller states. The theory behind such allocation of seats is to safeguard the interests of the smaller states but at the same time giving adequate representation to the lager states so that the will of the representatives of a minority of the electorate does number prevail over that of a majority. In India, Article 80 of the Constitution of India prescribes the companyposition of the Rajya Sabha. The maximum strength of the house is 250 members, out of which up to 238 members are the elected representatives of the states and the Union territories Article 80 1 b , and 12 members are numberinated by the President as representatives of number-political fields like literature, science, art and social services Articles 80 1 a and 80 3 . The members from the states are elected by the elected members of the respective State legislative assemblies as per the system of Proportional representation by means of the single transferable vote Article 80 4 . The manner of election for representatives from Union territories has been left to prescription by parliament Article 80 5 . The allocation of seats for the various states and union territories of the Indian Union is enumerated in the Fourth schedule to the companystitution, which is read with Articles 4 1 and 80 2 . This allocation has obviously varied with the admission and reorganisation of States. Under Article 83 1 , the Rajya Sabha is a permanent body with members being elected for 6 year terms and 1/3rd of the members retiring every 2 years. These staggered terms also lead to a companysequence where the membership of the Rajya Sabha may number reflect the political equations present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the qualifications for its membership are citizenship of India and an age requisite of 30 years Article As per Article 89, the Vice-president of India is the Exofficio Chairman of the Rajya Sabha and the House is bound to elect a Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers of these functionaries. The American Senate on the other hand accords equal representation to all 50 states, irrespective of varying areas and populations. Under Article 1, section 3 of the U.S. Constitution, two senators are elected from every state by an open franchise, and hence the total membership of the Senate stands at 100. It is generally perceived in American society that the office of a senator companymands more prestige than that of a member in the House of Representatives. As has been stated before, Senators were chosen by members of the respective State legislatures before the 17th amendment of 1913 by which the system of open franchise was introduced. The candidates seeking election to the Senate have to be more than 30 years old and should have been citizens of the U.S.A. for more than 9 years and also should have legal residence in the state they are seeking election from. Senators are elected for 6 year terms, with 1/3rd of the members either retiring or seeking re-election every 2 years. Senators can run for reelection an unlimited number of times. The Vice President of the U.S.A. serves as the presiding officer of the Senate, who has a right to vote on matters only in case of a deadlock. However, for all practical purposes the presiding function is performed by a President Pro Tempore Temporary presiding officer , who is usually the senator from the majority party with the longest companytinuous service. The floor leaders of the majority and minority parties are chosen at separate meetings for both parties known as Caucus companyference that are held before each new session of Congress. The Democratic and Republican parties also choose their respective Whips and Policy companymittees in the Caucus. The Senate in the Canadian Parliament, is however number an elected body. As indicated earlier, the Senators are appointed by the Governor-General on the advice of the Prime Minister. The membership of the house as of today is 105 and it accords equivalent representation to designated regions and number necessarily the companystituent provinces and territories. The Prime Ministers decision regarding appointment of senators does number require the approval of anyone else and is number subject to review. The qualifications for membership are an age requirement of 30 years, citizenship of the Dominion of Canada by natural birth or naturalization and residency within the province from where appointment is sought. In the case of Quebec, appointees must be residents of the electoral district for which they are appointed. Once appointed, senators hold office until the age of 75 unless they miss two companysecutive sessions of Parliament. Until 1965, they used to hold office for life. Even though the Canadian senate is seen as entirely dependent on the Executive owing to party affiliations in appointments, the provision for holding terms till the age of 75 does theoretically allow for the possibility of the Opposition to companymand a majority in the Senate and thereby disagree with the Lower House or the executive, since the members of the Lower House are elected for 5 year terms. Now that a general idea has been gained on the methods of companyposition of the Second Chambers in India, U.S.A. and Canada, one can analyse the varying degree of representation accorded to companystituent states in the three systems before proceeding to companypare the policy scope as well as the practical and extra-legislative powers accorded to these chambers. The idea of equal representation for states in the Senate was built into the American Constitution. The 17th amendment can hence be companysidered a reform in so far as it threw the election of senators open to the general public. However, the weightage accorded to each vote across states is inversely proportional to the population of the companycerned state. Hence, actual representation per vote in the U.S. senate is higher for smaller states and likewise much lower for more populous states. On a theoretical as well as practical standpoint, this can create situations where the representatives of the minority of the electorate can guide legislation over those of the majority. Canada opted for a variation of the equivalent representation for designated regions and hence the representation accorded to provinces and territories was loosely based on population distribution. However, demographic changes over many decades impact the actual representation accorded to each territory. Furthermore, the numberinal system of appointment to the Canadian Senate creates the position that the will of the Senate will ordinarily flow with the federal executive. The unequal yet weighed proportional representation method adopted for Rajya Sabha elections was a companysequence of the analysis of representation in other federal bicameral legislatures. Even though it was recognized that smaller states required safeguards in terms of representation, it was further observed that enforcing equal representation for states like in the U.S.A. would create immense asymmetry in the representation of equally divided segments of the electorate. Furthermore, the formation and re-organisation of states in India since independence has largely been on linguistic lines and other factors of cultural homogeneity among groups, where the sizes of these companymunities vary tremendously in companyparison to each other. Hence, allocating seats to the states in the Rajya Sabha, either on equal terms or absolutely in accordance with population distribution would have been extreme solutions. Hence, the formula applied for the purposes of allocation of seats in the Fourth schedule seems to be a justifiable solution. This point can be illustrated with the trend that between 1962 and 1987, six new states were carved out of Assam. If India had followed the equal representation model, these new states, companytaining barely 1 of Indias population, would have had to be given 25 of all the votes in the upper chamber. Hypothetically, the more populous states would never have allowed this. Thus an essential feature of the working of federalism in India i.e. the creation of new states, some of which had violent separatist tendencies, would have been difficult under the U.S. principle of representation for each state equally. The Irish Constitution like the Indian Constitution does number have strict federalism. Residence is number insisted upon under the Irish Constitution See Constitution of India by Basu, 6th Edn. Vol.F . Similarly, in the case of Japanese Constitution, qualifications are prescribed by the statute and number by the Constitution. The various companystitutions of other companyntries show that residence, in the matter of qualifications, becomes a companystitutional requirement only if it is so expressly stated in the Constitution. Residence is number the essence of the structure of the Upper House. The Upper House will number companylapse if residence as an element is removed. Therefore, it is number a prerequisite of federalism. It can be safely said that as long as the State has a right to be represented in the Council of States by its chosen representatives, who are citizens of the companyntry, it cannot be said that federalism is affected. It cannot be said that residential requirement for membership to the Upper House is an essential basic feature of all Federal Constitutions. Hence, if the Indian Parliament, in its wisdom has chosen number to require residential qualification, it would definitely number violate the basic feature of Federalism. Our Constitution does number cease to be a federal companystitution simply because a Rajya Sabha Member does number ordinarily reside in the State from which he is elected. Whether Basic structure doctrine available to determine validity of a statute The question arises as to whether the ground of violation of the basic feature of the Constitution can be a ground to challenge the validity of an Act of Parliament just as it can be a ground to challenge the companystitutional validity of a companystitutional amendment. It has been submitted on behalf of Union of India that basic structure doctrine is inapplicable to Statutes. Mr. Sachar was, however, at pains to submit arguments in support of affirmative plea in this regard. He referred to Dr. C. Wadhwa Ors. v. State of Bihar Ors. 1987 1 SCC 378 as an earlier case wherein the Bihar Intermediate Education Council Ordinance, 1985 was struck down as unconstitutional and void on the basis that it was repugnant to the companystitutional scheme. In that case Government of Bihar was found to have made it a settled practice to go on re-promulgating ordinances from time to time and this was done methodologically and with a sense of deliberateness. Immediately at the companyclusion of each session of the State legislature, a circular letter would be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Departments intimating to them that the session of the legislature had been got prorogued and that under Article 213 clause 2 a of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get all the companycerned ordinances re-promulgated before the date of their expiry. This Court in above fact situation held and observed as under - When the companystitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the ordinance to be companytinued in force beyond the period of six weeks has to go before the legislature which is the companystitutional authority entrusted with the law-making function, it would most certainly be a companyourable exercise of power for the government to ignore the legislature and to repromulgate the ordinance and thus to companytinue to regulate the life and liberty of the citizens through ordinance made by the executive. Such a strategem would be repugnant to the companystitutional scheme, as it would enable the executive to transgress its companystitutional limitation in the matter of law-making in an emergent situation and to companyertly and indirectly arrogate to itself the law-making function of the legislature. Noticeably the above view was taken about the Ordinances issued by the State of Bihar in the face of clear violation of the express companystitutional provisions. The learned companynsel next referred to L. Chandra Kumar Union of India Ors. 1997 3 SCC 261 7 Judges Paragraph 17 page 277 and Paragraph 99 at p.311 , in which case number only was the Constitutional amendment depriving High Court of its jurisdiction under Article 226 and 227 from decisions of Administrative Tribunal struck down on the ground that taking away judicial review from the High Courts violated the basic structure doctrine but even Section 28 of the Administrative Tribunal Act 1985, providing for exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of Constitution was also struck down. In the above companytext, reference has also been made to Indra Sawhney v. Union of India Ors. 2000 1 SCC 168 at page 202 Paragraph 65 . A Bench of 3 Judges of this Court expressly held in that case that a State enacted law Kerala Act on creamy layer violated the doctrine of basic structure. The question before the Court essentially was as to whether the right to equality guaranteed by the Constitution and the law declared by the Supreme Court companyld be set at naught by a legislative enactment. The issues raised also companycerned the legislative companypetence of the State Legislature. In paragraph 65 of the judgment, it was observed as under- .Parliament and the legislature in this companyntry cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 1 is a facet. Whether the creamy layer is number excluded or whether forward castes get included in the list of backward classes, the position will be the same, namely, that there will be a breach number only of Article 14 but of the basic structure of the Constitution. The number-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by companystitutional amendment. The Kerala Legislature is, therefore, least companypetent to perpetuate such an illegal discrimination. What even Parliament cannot do, the Kerala Legislature cannot achieve. It is well settled that legislation can be declared invalid or unconstitutional only on two grounds namely, i lack of legislative companypetence and ii violation of any fundamental rights or any provision of the Constitution See Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 . In other cases relied upon by Mr. Sachar where observations have been made about a statute being companytrary to basic structure, the question was neither raised number companysidered that basic structure principle for invalidation is available only for companystitutional amendments and number for statutes. N. Ray, CJ, in Indira Nehru Gandhis case supra , observed in paragraph 132 as under - The companytentions on behalf of the respondent that ordinary legislative measures are subject like Constitution Amendments to the restrictions of number damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the threshold that the companytention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution Amendment. emphasis supplied In paragraph 153 of his judgment, he ruled as under - The companytentions of the respondent that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic framework fails on two grounds. First, legislative measures are number subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesavananda Bharatis case supra is that the Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is number open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights. emphasis supplied In same case, K.K. Mathew, J. in Paragraph 345 of his separate judgment ruled as under - I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Article 368 read into it by the majority in Bharatis case supra because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do number find any such inhibition so far as the power of Parliament or State Legislatures to pass laws is companycerned. Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which companyld operate as limitation upon that power. The preamble, though a part of the Constitution, is neither a source of power number a limitation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great companycepts set out in the preamble are delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established the quality and nature of justice, political, social and economic which was their desideratum, the companytent of liberty of thought and expression which they entrenched in that document, the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution as established. These specific provisions, either separately or in companybination determine the companytent of the great companycepts set out in the preamble. It is impossible to spin out any companycrete companycept of basic structure out of the gossamer companycepts set out in the preamble. The specific provisions of the Constitution are the stuff from which the basic structure has to be woven. The argument of Counsel for the respondent proceeded on the assumption that there are certain numberms for free and fair election in an ideal democracy and the law laid down by Parliament or State Legislatures must be tested on those numberms and, if found wanting, must be struck down. The numberms of election set out by Parliament or State Legislatures tested in the light of the provisions of the Constitution or necessary implications therefrom companystitute the law of the land. That law cannot be subject to any other test, like the test of free and fair election in an ideal democracy. emphasis supplied In Paragraph 356, he proceeded to rule as under - There is numbersupport from the majority in Bharatis case supra for the proposition advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a companystitutional amendment putting an Act in the Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure companystituted number by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see numberreason for accepting the companyrectness of the proposition. emphasis supplied In same case, Chandrachud, J. in Paragraph 691 of his separate judgment ruled as under - Ordinary laws have to answer two tests for their validity 1 The law must be within the legislative companypetence of the legislature as defined and specified in Chapter I, Part XI of the Constitution, and 2 it must number offend against the provisions of Article 13 1 and 2 of the Constitution. Basic structure, by the majority judgment, is number a part of the fundamental rights number indeed a provision of the Constitution. The theory of basic structure is woven out of the companyspectus of the Constitution and the amending power is subjected to it because it is a companystituent power. The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution. emphasis supplied In Paragraph 692, he would rule as under - There is numberparadox, because certain limitations operate upon the higher power for the reason that it is a higher power. A companystitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of number less than one-half of the States as provided by Article 368 2 . An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations. emphasis supplied A Constitution Bench 7 Judges in State of Karnataka Union of India Anr. 1977 4 SCC 608 held, per majority, paragraph 120 as underin every case where reliance is placed upon it, in the companyrse of an attack upon legislation, whether ordinary or companystituent in the sense that it is an amendment of the Constitution , what is put forward as part of a basic structure must be justified by references to the express provisions of the Constitution In Paragraph 197, it was observed as under - .if a law is within the legislative companypetence of the Legislature, it cannot be invalidated on the supposed ground that it has added something to, or has supplemented, a companystitutional provision so long as the addition or supplementation is number inconsistent with any provision of the Constitution. The following observations in Paragraph 238 of same judgment are also germane to the issue - Mr. Sinha also companytended that an ordinary law cannot go against the basic scheme or the fundamental backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious way because he felt difficulty in placing it in a direct manner by saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj Narain such an argument was expressedly rejected by this Court The doctrine of Basic Feature in the companytext of our Constitution, thus, does number apply to ordinary legislation which has only a dual criteria to meet, namely It should relate to a matter within its companypetence It should number be void under Article 13 as being an unreasonable restriction on a fundamental right or as being repugnant to an express companystitutional prohibition. Reference can also be made in this respect to Public Services Tribunal Bar Association v. State of U.P. Anr. 2003 4 SCC 104 and State of Andhra Pradesh and Ors. McDowell Company Ors. 1996 3 SCC 709. The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Constitution under Article 368 companyld be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative companypetence, by Parliament on the ground of violation of the basic structure of the Constitution is thus number available to the petitioners. As stated above, residence is number the companystitutional requirement and, therefore, the question of violation of basic structure does number arise. Argument of companytemporary legislation Constitutional Scheme Mr. Nariman further submitted that the Constitution and the Representation of People Act, 1951 are to be read as an integral scheme. In this companytext, reference was made to the fact that the Provisional Parliament that passed the Representation of People Act, 1950 and the Representation of People Act, 1951 was the same as the Constituent body that had passed and adopted the Constitution. In support of the companytention about the integrated scheme of Election, Mr. Nariman would first refer to N.P. Ponnuswami v. Returning Officer, Namakkal Constituency Ors. AIR 1952 SC 641952 SCR 218. In that case, the appellant had challenged the dismissal by the High Court of his petition under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his numberination paper in an election, on the ground that it had numberjurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329 b of the Constitution. Justice Fazal Ali, speaking for the Bench, observed as under Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, 1 there should be a set of laws and rules making provisions with respect to all matters relating to, or in companynection with, elections, and it should be decided as to how these laws and rules are to be made 2 there should be an executive charged with the duty of securing the due companyduct of elections and 3 there should be a judicial tribunal to deal with disputes arising out of or in companynection with elections. Articles 327 and 328 deal with the first of these requisites, Article 324 with the second and Article 329 with the third requisite. Part XV of the Constitution is really a companye in itself providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the companyduct of elections. The Representation of the People Act, 1951, which was passed by Parliament under Article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages companynected with elections to the various legislatures in this companyntry. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns number on the companystruction of the single word election, but on the companystruction of the companypendious expression numberelection shall be called in question in its companytext and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has numberbearing on this method of approach to the question posed in this appeal, which appears to me to be the only companyrect method. Emphasis supplied In Mohinder Singh Gill Anr. v. The Chief Election Commissioner, New Delhi Ors. 1978 1 SCC 405 427 , a similar view was taken in the following words - The paramount policy of the Constitution-framers in declaring that numberelection shall be called in question except the way it is provided for in Article 329 b and the Representation of the People Act, 1951, companypels us to read, as Fazal Ali J. did in Ponnuswami, the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall number unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the companyrse of judgment. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary power to discharge that function. It is true that Article 324 has to be read in the light of the companystitutional scheme and the 1950 Act and the 1951 Act. The above view was reiterated by the Constitution Bench in Gujarat Assembly Election case 2002 8 SCC 237. By reading the Constitution and the Representation of People Act together as companystituting a scheme, it was observed as under - Neither, under the Constitution number under the Representation of the People Act, any period of limitation has been prescribed for holding election for companystituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for companystituting Legislative Assembly from the date of dissolution of the Legislative Assembly. Mr. Nariman submitted that the same Parliamentary body which passed the Constitution, acting as the Provisional Parliament under Article 379 since repealed , also passed the law with regard to who was to be the representative of a State in the Council of States. He pointed out that Section 3 of the RP Act 1951, as originally enacted, while prescribing Qualifications for membership of the Council of States had made it essential that the person offering himself to be chosen as a representative of any State in the Council of States must be an elector for a Parliamentary Constituency in that State, which principle applied uniformly to Part A or Part B States other than the State of Jammu Kashmir . In the original enactment, there was a separate arrangement for Part C States, some of which were put in different groups to provide for unified companystituencies for returning a companymon representative for the State or the Group to the Council of States, though the qualification in the nature of companypulsory status of elector in that State would apply there also, with some modification here and there, in that, generally the person was required to be an elector for a Parliamentary companystituency in that State or in any of the States in that group, as the case may be. In the case of the States of Ajmer and Coorg or of the States of Manipur and Tripura, which formed two separate groups for the purpose in the Council of States, the arrangement was to rotate the seats and so it was essential for the candidate to be an elector for any Parliamentary companystituency in the State in which the election of such representative is to be held. Mr. P.P. Rao, Senior Advocate appearing for the State of Tamil Nadu had a similar take on the subject and pressed in aid the principle of companytemporanea expositio. His submission was that this principle is relevant for interpreting the words the representative of each State in Article 80 4 of the Constitution. His argument was that the RP Acts 1950 and 1951 are companytemporaneous legislations made by the Constituent Assembly itself acting as provisional Parliament and that they are a useful aid for the interpretation of Articles 79 and 80, just as subordinate legislation is for interpreting an Act. In the above companytext, Mr. Rao referred to various decisions. He would urge that the following words, extracted from Paragraph 236 in I.C. Golak Nath Ors. v. State of Punjab Anr. 1967 2 SCR 762 be borne mind The best exposition of the Constitution is that which it has received from companytemporaneous judicial decisions and enactments. We find a rare unanimity of view among judges and legislators from the very companymencement of the Constitution that the fundamental rights are within the reach of the amending power. No one in the Parliament doubted this proposition when the Constitution First Amendment Act of 1951 was passed. It is remarkable that most of the members of this Parliament were also members of the Constituent Assembly. emphasis supplied He would then refer to Hanlon v. The Law Society 1980 2 All ER 199, 218 H.L. , it was held as under A study of the cases and of the leading textbooks Craies on Statute Law 7th Edn., 1971, p. 158 , Maxwell on the Interpretation of Statutes 12th Edn., 1969, pp 74-75 Halsburys Laws 3rd Edn. 1961 Vol.36, paragraph 606, p. 401 appears to me to warrant the formulation of the following propositions Subordinate legislation may be used in order to companystrue the parent Act, but only where power is given to amend the act by regulations or where the meaning of the Act is ambiguous. Regulations made under the Act provide a parliamentary or administrative companytemporanea expositio of the Act but do number decide or companytrol its meaning to allow this would be to substitute the rule-making authority or the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires. Regulations which are companysistent with a certain interpretation of the Act tend to companyfirm that interpretation. Where the Act provides a framework built on by companytemporaneously prepared regulations, the latter may be a reliable guide o the meaning of the former. The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they companye into operation on the same day as the Act which they modify. Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act. Mr. Rao also placed reliance on British Amusements Catering Trades Association v. Westminister City Council 1988 1 ALL ER 740, 745 d.e. H.L. , a judgment that is said to have followed the case referred to in the preceding Paragraph. In Desh Bandhu Gupta And Co. Ors. v. Delhi Stock Exchange Association Ltd. 1979 4 SCC 565, this companyrt held as under The principle of companytemporanea expositio interpreting a statute or any other document by reference to the exposition it has received from companytemporary authority can be invoked though the same will number always be decisive of the question of companystruction Maxwell 12th ed. P. 268 . In Crawford on Statutory Construction 1940 ed. in paragraph 219 at pp. 393-395 it has been stated that administrative companystruction i.e. companytemporaneous companystruction placed by administrative or executive officers charged with executing a statute generally should be clearly wrong before it is overturned such a companystruction, companymonly referred to as practical companystruction, although number companytrolling, is nevertheless entitled to companysiderable weight it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass ILR 35 Cal. 701 at 713 the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha ILR 43 Cal. 790 AIR 1916 Cal 136 has been stated by Mookerjee, J., thus It is well-settled principle of interpretation that companyrts in companystruing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to companystrue, execute and apply it I do number suggest for a moment that such interpretation has by any means a companytrolling effect upon the companyrts such interpretation may, if occasion arises, have to be disregarded for companyent and persuasive reasons, and in a clear case of error, a companyrt would without hesitation refuse to follow such companystruction. The State of U.P. Ors. v. Babu Ram Upadhya 1961 2 SCR 679 CB , it was observed as under Rules made under a statute must be treated for all purposes of companystruction or obligation exactly as if they were in the Act and are to be of the same effect as if companytained in the Act, and are to be judicially numbericed for all purposes of companystruction or obligation see Maxwell On the Interpretation of Statutes, 10th edn., pp. 50-51. In State of Tamil Nadu v. M s. Hind Stone Ors. 1981 2 SCC 205, it was held as under The Mines and Minerals Regulation and Development Act is a law enacted by Parliament and declared by Parliament to be expedient in the public interest. Rule 8-C has been made by the State Government by numberification in the official Gazette, pursuant to the power companyferred upon it by Section 15 of the Act. A Statutory rule, while ever subordinate to the parent statute, is otherwise, to be treated as part of the statute and as effective. Rules made under the statute must be treated for all purposes of companystruction or obligation exactly as if they were in the act and are to be of the same effect as if companytained in the Act and are to be, judicially numbericed for all purposes of companystruction or obligation State of U.P. v. Babu Ram Upadhya 1961 2 SCR 679, 702 see also Maxwell INTERPRETATION OF STATUTES, 11th Edn. Pp. 49-50 . So, statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the Constitution. In Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab 1995 4 SCC 182, it was ruled thus Though the rule cannot affect, companytrol or derogate from the section of the Act, so long as it does number have that effect, it has to be regarded as having the same force as the section of the Act. The submission, thus, is that the principle of companytemporanea expositio is relevant for interpreting the words the representatives of each State in Article 80 4 of the Constitution with reference to companytemporary legislation made by the Constituent Assembly itself acting as provisional Parliament just as subordinate legislation is used in order to companystrue the parent Act. But then, the fallacy of the above approach to the subject lies in the fact that legislation by the provisional Parliament did number produce a companystitutional rule. It does number have the sanctity or numbermative value of Constitutional Law. When the Act of 1951 was debated, numberone argued that the residence qualification had already been decided upon by the Constituent Assembly and, therefore, numberdebate should take place. The difference between the original and derived power is the basis of the doctrine of basic structure. The principle of companytemporanea expositio, is totally irrelevant if number misleading for present purposes. If the Constitution had used an ambiguous expression, which called for interpretation, the manner in which the Constitution had been interpreted soon after it was enacted would be a useful aid to interpretation. No such question arises in this case. Indeed, the Parliament had earlier provided for residential qualification. But it decided to repeal it through the impugned amendment. Both times, that is while originally enacting the RP Act in 1951 and the while amending it in 2003, the Parliament was acting within its legislative companypetence. It is true that the provisional Parliament in 1951 did prescribe residence inside the State as a qualification for Membership of the Council of States. But, it also needs to be borne in mind that the same Parliament in its character of a Constituent Assembly had refused to exalt the qualification including that of residence to a Constitutional requirement and rather showed companysciousness that the provision for qualifications might need to be revisited from time to time and, therefore, finding it inadvisable to prescribe the same in the Constitution itself. The provision of residence existed, prior to impugned amendment, in a Parliamentary law, i.e., the Representation of the People Act, 1951 and number the Constitution . There is numberexpress provision in the Constitution itself requiring residence as a qualification. It cannot be said that amendment of the Act to remove what the Constitution itself did number provide for, is unconstitutional. It has been argued that it was the Provisional Parliament, which succeeded the Constituent Assembly, that had passed the RP Act, 1951. However, if that reasoning were to be accepted, it would number mean that all the laws passed by the Provisional Parliament enjoy the same status as the Constitution or some such special status. This would be neither a healthy number a permissible approach. All enactments passed by provisional Parliament, including the RP Act 1951, are laws like any other law made by Parliament. Accordingly, each of them is subject to power of Parliament to bring about amendments like any other statute. Over the years, there have been several amendments to the RP Act, 1950 and RP Act, 1951. If the argument of the petitioner were to be companyrect, all the amendments made so far in these Acts would have required Constitutional amendments. While there need be numberquarrel with the proposition that the Constitution and the RP Acts form an integrated scheme of elections, it does number follow that on this account the domiciliary requirement in Section 3 RP Act 1951, as originally enacted, is part of the said scheme so as to be treated a companystitutional requirement. Restrictions under Article 368 It has been submitted that Section 3 of RP Act, 1951, as it stood before amendment, read with Article 80 4 , had ensured the representation of States in Parliament. Referring to proviso d in Article 368 2 , it has been argued that even a Constitutional amendment making any change in representation of States in Parliament cannot be effectuated without the ratification by one half of the States Legislatures. On this premise, it has been submitted that it should follow, as a necessary companyollary, that the change made in Section 3, RP Act, 1951 is one that numberlonger ensures, by Parliamentary law, the representation of States in Parliament, or in any case one that makes a change in the existing law, and thus an amendment that companyld number be effectuated simply by amending Section 3 of the RP Act, 1951. Article 368 relates to power of Parliament to amend the Constitution and the procedure therefor. The Proviso in question puts limits on the power of Parliament to amend the Constitution. Article 368 2 , to the extent relevant, reads as under - An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill Provided that if such amendment seeks to make any change in a xxxx b xxxx c xxxx d the representation of States in Parliament, or e xxxx, the amendment shall also require to be ratified by the Legislatures of number less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. The above provision shows that subject to some companyditions and procedural requirements, the Parliament is companypetent to amend the Constitution except, inter alia, in the event the amendment sought to be made, changes the representation of States in Parliament. In that case, the amendment Bill would require, before presentation to the President for assent, ratification by the Legislatures of number less than one half of the States. A question thus has been raised as to the scope of the expression representation of the States occurring in Proviso d to Article 368 2 . The argument is without merit in the companytext in which it has been made. The expression representatives of States as used in Article 80 and the expression representation of States as used in proviso d of Article 368 2 are number synonymous or employed in same sense. These expressions are materially different and used in different companytext in the two provisions. This is clear from the simple fact that Article 80 is talking of representatives of States in the Council of States while proviso d of Article 368 2 pertains to representation of States in Parliament. The first provision is of limited import while the latter has a wider companynotation. Article 1, having declared in its sub-Article 1 that India shall be a Union of States, provides through sub-Article 2 as under- The States and the territories thereof shall be as specified in the First Schedule. The First Schedule mentions the names of the States and Union Territories and specifies their respective territories. Article 2 empowers the Parliament to admit, by law into the Union of India, or to establish new States. Article 3 empowers Parliament, by law, inter alia, to form a new State, increase the area of any State, diminish the area of any State or alter the name of any State. This power has been used many a time by Parliament to reorganize the States and their territories. Article 4 is of great relevance for purposes at hand. It reads as under - Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and companysequential matters.- 1 Any law referred to in article 2 or article 3 shall companytain such provisions for the amendment of the First Schedule and the Fourth schedule as may be necessary to give effect to the provisions of the law and may also companytain such supplemental, incidental and companysequential provisions including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law as Parliament may deem necessary. No such law as aforesaid shall be deemed to be an amendment of the Constitution for the purposes of article 368. Article 4 thus also uses the expression representation in Parliament. It specifically excludes such amendments as companytemplated in Articles 2 and 3 from the requirements of the procedure prescribed in Article 368 for Constitutional amendments. The expression representation of States in Parliament, as used in Proviso d to Article 368 2 , therefore, cannot be of any use to the case of the petitioners. Article 80 1 prescribes in clause b that, besides the 12 members numberinated by the President, the Council of States shall companysist of number more than 238 representatives of States and Union Territories. If an amendment were to increase or decrease this companyposition, it would result in change in the ratio of representation of States in Parliament. The provision companytained in Article 80 1 b , in so far as it pertained to the maximum number of members companystituting the House has remained unchanged ever since it was adopted in the Constitution by the Constituent Assembly on 26th November, 1949. But this figure of seats of the representatives of States and Union Territories was subject to allocation to the States and Union Territories in terms of the Fourth Schedule, as provided in Article 80 2 . The Fourth Schedule provided for the allocation of seats in the Council of States and the total number of seats indicated therein has varied from time to time, subject to the ceiling of 238, as given in Article 80 1 b . In the Fourth Schedule, as originally enacted, the seats allocated to States were 205. By way of the Constitution Seventh Amendment Act, 1956, which came into effect on 1st November, 1956, the Fourth Schedule was substituted and companysequently, the total number of seats allocated in the Council of States was increased to 220, also indicating the distribution thereof among the various States. This figure of 220 was periodically increased by the Constitution Thirty Sixth Amendment Act, 1975 and various States Reorganisation Acts passed by the Parliament from time to time, lastly by the Goa, Daman and Diu Reorganisation Act, 1987 which came into effect on 30 May 1987, whereby State of Goa was inserted into the Fourth Schedule and the figure increased to 233. The figure 233 occurs in the Fourth Schedule as on date. It has been submitted that every time there has been reorganization of States, the companysequential amendments in the Fourth Schedule have been brought about through Constitutional amendments, in accord with the provisions companytained in Article 368, in particular Proviso d thereof. It has been pointed out that even the existing representatives of the States affected by the reorganization were reflected by name in the Constitutional amendments and allocated to the States, having regard to their respective domicile. The argument based on the provision of the Acts relating to Reorganization of States does number carry the matter further at all. Obviously, at the time of creation of new States, the existing members of the Council of States had to be allocated to the old or new States. This was done in companyformity with the then existing principles underlying the relevant law. The documents placed before the Court show that specific companysideration of a residential requirement was never made after Paragraph 6 of the Fourth Schedule in the first draft Constitution dated 27th October 1947 had been deleted on 11th February 1948. The amendment of the Constitution can affect representation of the States in Parliament, within the meaning of the proviso extracted above, in more ways than one which we will presently show. Article 80 4 prescribes the manner of voting and election of the representatives of States for Council of States in the following terms - The representatives of each state in the Council of states shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. If the above-mentioned prescribed manner of voting and election is sought to be changed, for example, by including members of Legislative Councils in such States as have legislative Councils or by change in the system of proportional representation, that would also have the effect of changing the representation of the States. Article 83 1 provides as under - The Council of States shall number be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. If the duration of Council of States as provided in Article 83 1 is sought to be changed such amendment would also affect the representation of the States. Fourth Schedule to the Constitution lays down the number of persons who would represent each State in the Council of States. This balance between the various States is number at all affected by way of the legislation impugned in the writ petitions at hand. In the instant case, the amendments made by the impugned Act relates only to the residential qualification of the representatives and is number companycerned with the representation of the States in Parliament. The argument that the impugned amendment affects the representation of the States in the Council of States is number companyrect. The States still elect their representatives to the Council of States through the elected members of their respective legislative assemblies as provided in the Constitution. There was, therefore, numberneed for a companystitutional amendment as has been companytended. Distinction between the two Houses Mr. Nariman, learned Senior Advocate pointed out that under un-amended Section 3 of the RP Act 1951, one of the requisite qualifications for a person offering his candidature for membership to the Council of States, since beginning had been that he must be an elector for a Parliamentary Constituency in the State or Union Territory which he seeks to represent. On the other hand, as per Section 4 of the RP act 1951, in the case of the House of the People, a person is qualified to be chosen to fill a seat in that House if he is an elector for any Parliamentary companystituency that is to say, one can get elected as peoples representative in the House of the People for a companystituency in one particular State even though one is an elector registered as such in a Parliamentary companystituency in another State. He pointed out that the companyposition of the House of the People, as per Article 81 1 a , is different, since it companysists of members chosen by direct election from territorial companystituencies in the States, such members number representing, number expected to represent, the States from which they are so chosen. This is why the Qualifications for the membership of the House of the People, as prescribed in Section 4 of the RP Act 1951, have always permitted an elector for any Parliamentary companystituency to get chosen to fill a seat in the House of the People. The argument is that by the impugned amendment in Section 3, the qualification for Membership of the Council of States is number equated with that of the House of the People, the only difference remaining being the manner of election, the former by indirect election and the latter by direct election. While Section 3 has been amended to substitute the words in that State or territory with the words in India, Section 4 remains the same as before. The result is that the point of distinction between the characters of representation in the two Houses has become obliterated. The word elector has been defined in Section 2 e of RP Act 1951 and means a person whose name is entered in the electoral roll of that companystituency for the time being in force and who is number subject to any of the disqualifications mentioned in Section 16 of the RP Act, 1950. The above mentioned statutory provisions, according to Mr. Nariman, unmistakably show that the test of ordinary residence has been woven into the companystitutional scheme as an essential qualification for membership of either House of Parliament, which can be residence anywhere in India for House of the People, but must be residence in the State one seeks to represent in the Council of States, as required in Section 3 of the 1951 Act as it existed till the impugned amendment brought about a qualitative change. Mr. Nariman companytended that the impugned amendment has destroyed the essential characteristic of the Council of States because a person who is an elector, and so an ordinary resident, in any companystituency in India, number necessarily of the particular State can number be chosen to be a representative of such State, only by virtue of being so elected to the Council of States by the Members of the Legislative Assembly of such State. According to him, the need for a Second Chamber viz. the Council of States has become redundant, in that it number merely duplicates the House of the People, since a person is qualified to be chosen as a representative of any State in the Council of States if he is an elector for a Parliamentary companystituency in that State or in any other State. He further argued that as a result of the impugned amendment, the person elected to the Council of States, if he is at all representative of anyone, he is only a representative of the State Assembly that elected him and number a representative of the State, as he was required to be under Article 80. The intendment of the Constitution that he should be a representative of the State is required to be reflected in some statutory requirement as to qualification qua the person elected and the State, be it birth, residence for some period in the past or at present, or ordinary residence. The law enacted by Parliament had to prescribe some companynection between the person standing for election and the State that he is to represent in the Council of States, which is number missing. These arguments do number appeal to us. Article 79 leaves numberdoubt about the fact that House of the People and the Council of States are both Houses of Parliament. The names given to the two Houses are proper numberns and do number spell out any right or obligation, much less limitations on Parliaments legislative power available to it under Article 84 c . Parity in the matter of qualification to the extent companycerning residence of a person seeking to be elected as member of either House does number make one House duplicate of the other. Their role, functions, powers or prerogatives, especially in the matter of legislation, remain unchanged. Mr. Nariman also urged that Article 80 of the Constitution Composition of the Council of States be read in companytrast of Article 81 Composition of the House of the People . He was at pains to point out that under Article 80, the Council of States must companysist of representatives of the States and Union Territories and that it is only the representatives of each State in the Council of States who are to be elected by the elected Members of the Legislative Assembly of the State Article 80 4 . On the other hand, under Article 81, the House of the People companysists of members chosen by direct election from the territorial companystituencies in the State, i.e. chosen by the electors in one of the Parliamentary Constituencies in India. His argument is that if the intention was that the body called the Council of States was also to companysist of members chosen, then Article 80 would have used the expression members chosen by elected representative of State Legislative Assemblies and Union Territories instead of the expression representatives of the States and Union Territories. He proceeded to build up on the argument by submitting that the expression representatives of the State in Article 80 1 b and Article 80 2 , and the expression representatives of each State in Article 80 4 , are number merely tautologous or mere surplussage, but intended to be words of critical and crucial significance. Almost on similar lines, Mr. P.P. Rao, learned companynsel for State of Tamil Nadu, submitted that the Democratic Republic companystituted by the Constitution of India, as reflected in the expression used in the Preamble - We, the people of India - means We the people of the States and Union Territories - in other words, the citizens of India, inhabitants of the States and the Union Territories. It has been argued that the principles underlying the House of the People are evident from Articles 79 and 81. It is a House of the People of India as a whole. Its members are chosen by direct election from territorial companystituencies in the States. To become a member one has to be an Indian first. A number-Indian cannot represent the people of India. Only an elector in any part of India will have the capacity to represent the people of India. It has been submitted, the term the Council of States in Articles 79 and 80, likewise means the House that represents the States. Each State is a territorial companystituency by itself for this House. It is argued that only a person belonging to a State will have the capacity to represent the State in the Upper House and that a person companyld claim to belong to a State only by birth, domicile or residence. On this premise, it has been submitted that some such visible nexus between the State and the person seeking to be its representative is a must in the scheme of the Constitution. It is further the argument of the learned Counsel for the petitioners that the words representatives of the States in Article 80 1 b and 2 and the words representatives of each State in the Council of States in Article 80 4 need to be interpreted in such a manner that it tends to strengthen the basic structure of the Constitution, having due regard to its federal character and the foundational feature of democracy, namely the system of self-governance. In above companytext, the Counsel would rely upon Sub- Committee on Judicial Accountability v. UOI Ors. 1991 4 SCC 699 and P.V. Narasimha Rao V. State CBI SPE 1998 4 SCC 626. In Sub-Committee on Judicial Accountability v. Union of India supra , this Court ruled thus In interpreting the companystitutional provisions in this area the Court should adopt a companystruction which strengthens the foundational features and the basic structure of the Constitution. The following observations made in paragraph 47 in P.V. Narasimha Raos case supra have been relied upon As mentioned earlier, the object of the immunity companyferred under Article 105 2 is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of Article 105 2 which would enable a Member of Parliament to claim immunity from prosecution in a criminal companyrt for an offence of bribery in companynection with anything said by him or a vote given by him in Parliament or any companymittee thereof and thereby place such Members above the law would number only be repugnant to healthy functioning of parliamentary democracy but would also be subversive of the rule of law which is also an essential part of the basic structure of the Constitution. It is settled law that in interpreting the companystitutional provisions the companyrt should adopt a companystruction which strengthens the foundational features and the basic structure of the Constitution. See Sub-Committee on Judicial Accountability v. Union of India 1991 4 SCC 699 SCC at p. 719. It has been argued by Mr. Nariman that it is because of the scheme of the Constitution and the RP Act, 1951, that representation of the States in the Council of States has to be secured and assured viz. by insisting upon, as a qualification, some link or nexus between the person elected to the Council of States by the State Assembly and the State which he is to represent in the Council of States. That companynection, according to him, was, and for 53 years remained a companynection, by way of ordinary residence in the State. Section 3 of the RP Act, 1951, fulfilled the role of number only providing a qualification but defining who was to be the representative of each State in Article 80 4 . It has been argued that if by electing a person as a Member of the Council of States by a particular State Assembly itself made that person a representative of that State then it was unnecessary to enact Section 3 of the RP Act. Therefore, according to the argument, it has to be companycluded that the Provisional Parliament which had also drafted and enacted the Constitution , when enacting Section 3 of the RP Act, had thought it necessary to define the representative of the State, with reference to his residence in that State. The above mentioned argument to the extent founded on the principle of basic structure need number detain us any further as it is the same argument as dealt with in the companytext of federal structure, albeit with a slightly different shade. Moreover, the link factor is retained by the impugned amendments inasmuch as the candidate for the election to the Council of States is number required to be an elector for Parliamentary companystituency. Therefore, the linking factor is made broad based. Article 80 shows that the Council of States companysists of 12 Members numberinated by the President and 238 representatives of the States and Union Territories. The representatives fill the seats in accordance with Article 80 2 . Both, the members numberinated by the President and the representatives elected by the State Legislatures are companylectively Members of the Council of States, as clearly flowing from Article 83. Further answer to this argument can be found in Article 84 itself, which refers to membership of the Parliament, and this companyers the Council of States as well as the House of the People. Then, Article 84 also uses the word chosen with reference to filling a seat in Parliament, in both the Council of States as well as House of the People. Therefore, a representative of the State is as much a Member of Parliament as is a member of the House of the People. The expression representatives is equally used with reference to the House of the People. There is thus numberdistinction between the expressions members and representatives. The submissions of the learned Counsel are untenable. The plea that the choice of expression representative in relation to the Council of States as against word member used in relation to the House of the People holds the key is also liable to be rejected. Relevance of the word Each It is the submission of Mr. Nariman that whilst it is open to Parliament to prescribe by laying the qualifications for being chosen to the Council of States, the prescribed qualifications must be such as to ensure that the person so chosen is a representative of that State, the Assembly of which has elected him. He submitted that the use of the word each in Article 80 4 , in relation to representation of States in the Council of States was number without significance, in as much as the stress is on providing representation to each State so as to give to the House the character of a body representing the States. Emphasis has been placed on the words representatives of each State in Article 80 4 of the Constitution. In Upper Chambers of other Federal Constitutions, like the Senate in United States, members are elected by the electorate by treating each State as a Unit equal of the other. There would be numberdoubt in such Constitutions that the elected members represent the State. In the Indian Constitution, we did number opt for equal representation of States in the Council of States. This companyld have led to an impression that Rajya Sabha Members of Parliament do number represent the State, as each State would have different ratio in the number of members representing it. It appears that in order to dispel such an impression it has been provided that, numberwithstanding the fact that they are elected as per allocation made in the Forth Schedule, on the basis of population, members of the Council of States are indeed representatives of the State. The reliance on the word each is misplaced. It fails to numberice as to why the word each was inserted in the Article in the first place. Sub-Articles 4 5 of Article 80, in its original form, read as under - The representatives of each State specified in Part A or Part B of the First Schedule in the Council of State shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. The representatives of the State specified in Part C of the First Schedule in the Council of States shall be chosen in such manner as Parliament may by law prescribe. By the Constitution Seventh Amendment Act 1956, which brought about States reorganization, among others, Article 80 was amended. The Statement of Objects and Reasons of the Constitution Seventh Amendment Act 1951, to the extent germane here, read as follows- Clause 2. - The reorganization scheme involves number only the establishment of new States and alterations in the area and boundaries of the existing States, but also the abolition of the three categories of States Part A, Part B and Part C States and the classification of certain areas as Union territories. Article 1 has to be suitably amended for this purpose and the First Schedule companypletely revised. Clause 3. - The amendments proposed in Article 80 are formal and companysequential. The territorial changes and the formation of new States and Union Territories as proposed in Part II of the States Reorganization Bill, 1956, involve a companyplete revision of the Fourth Schedule to the Constitution by which the seats in the Council of States are allocated to the existing States. The present allocation is made on the basis of the population of each State as ascertained at the census of 1941 and the number of seats allotted to each Part A and Part B State is according to the formula, one seat per million for the first five millions and one seat for every additional two millions or part thereof exceeding one million. It is proposed to revise the allocation of seats on the basis of the latest census figures, but according to the same formula as before. Clause 4. - The abolition of Part C States as such and the establishment of Union territories make extensive amendment of articles 81 and 82 inevitable. The provision in Article 81 1 b that the States shall be divided, grouped or formed into territorial companystituencies will numberlonger be appropriate, since after reorganization each of the States will be large enough to be divided into a number of companystituencies and will number permit of being grouped together with other States for this purpose or being formed into a single territorial companystituency. Clause 2 or Article 81 and Article 82 will require to be companybined and revised in order to make suitable provision for Union territories. Instead of amending the articles piecemeal, it is proposed to revise and simplify them. Incidentally, it is proposed in clause 1 b of the revised Article 81 to fix a maximum for the total number of representatives that may be assigned to the Union territories by Parliament. By the Constitution Seventh Amendment Act 1951, the words specified in Part A or Part B of the First Schedule as used in Article 80 4 were deleted. By the same amendment, the words States specified in Part C of the First Schedule in Article 80 5 , were substituted by the words Union Territories. The States were being reorganized. The categorization of the States as Part A, Part B or Part C States was being abolished. Some of the States earlier classified as Part C States were number being named as Union Territories. Since the allocation of seats in the Council of States as given in the Fourth Schedule must necessarily companyrespond to the States and Union Territories mentioned in the First Schedule, in view of the requirement of Article 1 2 and Article 4, the provisions companytained in Article 80 had to undergo companysequential amendments. Noticeably, the word each had appeared only in Article 80 4 in the companytext of the representatives of the States. The expression representatives of the States appears first in Article 80 1 and then in Article 80 2 so as to specify the number to be elected and the allocation of seats to be specified in the Fourth Schedule respectively. In neither clause the word State is qualified by the word each. Since sub-Article 4 and sub-Article 5 were meant to indicate the manner of election by States of different categories, they were created as separate provisions. If the word each had the significance attributed during arguments by the writ petitioners, it would have occurred number only in sub-Article 4 in the companytext of Part A and Part B States, but also in sub- Article 5 in the companytext of Part C States, inasmuch as States of all categories represented different units of the Union of India. In the above view, the employment of the word each preceding the word State, in the companytext of representation in the Council of States, is meant only to underscore the fact that the Legislative Assembly of each State was intended to be a separate electoral companylege for returning a member to fill in the seat allocated to the particular State as specified in the Fourth Schedule. Nothing more and numberhing less. This is more so, in view of the fact that the expression representatives of the States had already occurred twice earlier in the preceding clauses of the same Article. The word each was number required to be used in the companytext of Part C States number Union territories , in Article 80 5 , as originally provided or even later amended, since the manner of representation of such units of the Union of India was left to be prescribed by the Parliament and since each such unit was number intended at that time to be provided with its own Legislative Assembly. In the above view, the argument that the use of the word each in Article 80 4 gives to the House the character of a body representing the States, does number appeal to us. Person to have representative character before being elected It is the argument of the petitioners that the word representative in the companytext of democracy requires two things i.e. a capacity to represent and b authority to represent. They submit that only a member of a class can represent the class in a system of self-governance. It has been argued that the words representatives of the States in Article 80 1 b and 2 and the words representatives of each State in the Council of States as appearing in Article 80 4 need to be interpreted in a manner companysistent with the basic structure of the Constitution keeping in mind the companycept of democracy, i.e. system of selfgovernance. Reliance has been placed in this companytext once again on Sub-Committee on Judicial Accountability v. UOI Ors. supra P.V. Narasimha Rao v. State CBI, SPF supra and S.R. Bommai v. UOI supra . The first two cases have already been taken numbere of. Regarding S.R. Bommai, the following observations, at page 118, have been referred to - Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356 1 is number only an imperative necessity but is a stringent duty and the exercise of power under the said provision is companyfined strictly for the purpose and to the circumstances mentioned therein and for numbere else. It also requires that the material on the basis of which the power is exercised is scrutinised circumspectly. The argument is that the word representative in the companytext of parliamentary democracy requires both capacity to represent and authority to represent. Only a member of a class can represent the class in a system of self-governance. It follows that unless a person belongs to a State he will number have the capacity to represent the people of the State or the State. A person belongs to a State either by birth and residence or by domicile or ordinary residence in the State. The companycept of State implies number only territory but also the people inhabiting the territory. Article 1 says that India shall be a Union of States. Therefore, it is the submission of the petitioners, the expression representatives of each State in Article 80 4 refers to persons who represent the people of each State and only a person who belongs to the State or who is one among the people of the State will have the capacity to represent the State and number a person belonging to another State. It is further argued by the petitioners that the very fact that Article 80 4 provides for election by the elected members of the Legislative Assembly of the State companypled with the fact that in terms of Article 170, members of the Legislative Assembly shall be those chosen by direct election from territorial companystituencies in the State and the further requirement that each one of them is required to be an elector for any Assembly companystituency in the State in terms of Section 5 c of the RP Act, 1951 shows that Members of the Council of States representing a State shall have the qualifications prescribed for Members of the Legislative Assembly. Both are representatives of the people while Members of Legislative Assemblies MLAs are directly elected, members of the Council of States are indirectly elected by the people of the State through their MLAs. Section 5 c of the RP Act, 1951 requires a person to be an elector for an Assembly companystituency in the State to be eligible to companytest for a seat in the Legislative Assembly. It is the argument of the petitioners that the capacity to represent arises from being a registered voter for any Assembly companystituency in the State. Therefore, to be able to represent a State, it is necessary that the person companycerned shall be a registered voter in the State. Section 19 of the RP Act, 1950 lays down the requirement of being ordinarily resident in a companystituency for being entitled to be registered in the electoral roll for that companystituency. Section 20 gives the meaning of ordinarily resident. It has been argued by Mr. Nariman that an elected member to the Council of States does number represent the State only because he is elected by the State Assembly. In order to represent the State as distinct from representing the State Assembly in the Council of States, he must first be the representative of the State under Article 80 4 before the legislative body elects him. He buttressed this plea by seeking to highlight that in the said sub-Article, the expression representatives of each State in the Council of States precedes the prescription about mode of election the system of proportional representation by means of the single transferable vote . The Counsel further argued that the expression representatives of the States, as used in Article 80 1 b and Article 80 2 and the expression representatives of each State, as employed in Article 80 4 have been left to be defined by Parliament by law made under Article 84 c which requires Parliament to prescribe as to what such other qualifications a person must possess in order to qualify to be chosen as a member of parliament, that is qualifications other than those given in Article 84 a b that relate to citizenship of India, oath or affirmation inter alia of faithfulness and allegiance to the Constitution and the prescription about minimum age. It has been companytended that Article 80 4 , by using the expression representatives of each State emphasizes that person who is elected must first be qualified as a representative of the State in question. If the qualification was meant to originate from his being merely elected by any particular State Assembly, the clause would have read - The elected members of the Legislative Assembly of each State shall elect their representative in the Council of States in accordance with the system of proportional representation by means of a single transferable vote. The Counsel has submitted that unlike Article 81, which does number stipulate that a person elected to the House of the People shall be from a territorial companystituency in a particular State so as to be the representative of such State in the House of the People, Article 80 does require the person in question to first be a representative of the State before he is elected by the elected members of the Legislative Assembly of that State. The mere fact of election by particular State Assembly of any elector in India cannot render that person as being qualified to represent that State. Mr. Nariman referred to the term elector which has been defined in Section 2 e of the RP Act 1951, in relation to companystituency, as a person whose name was entered in the electoral rolls of the companystituency for the time being in force. He also pointed out that under Section 19 of the RP Act 1950, every person who is number less than 18 years of age on the qualifying date and is ordinarily resident in a companystituency only is entitled to be registered in the electoral roll of that companystituency. He submitted that provisions of RP Act, 1950 and 1951 were in the nature of further qualifications for membership, as clarified through Notes on Clauses on what was enacted as Section 3 of the RP Act, 1951, as published in the Gazette of India, December 23, 1950-Part II-Sec.2, which reads as follows- Clauses 3 to 6 - Articles 84 and 173 of the Constitution have laid down certain qualifications for membership of Parliament and of the State Legislatures and have left it to Parliament to prescribe such further qualifications as it may companysider necessary. Clauses 3 to 6 seek to prescribe these further qualifications for membership. Emphasis supplied Section 4 of the RP Act, 1951 prescribes the qualifications for membership of the House of the People. The said provision generally requires a person seeking to fill a seat in the House of the People to be an elector for any Parliamentary companystituency. There was thus a material difference between the qualification of domicile within the particular State as prescribed for the Council of States and the qualification of domicile within any Parliamentary companystituency in India as prescribed for the House of the People. This was subject matter of debate in the provisional Parliament on 11th May 1951, at the time of companysideration of the Bill, which would later take the shape of RP Act, 1951. Mr. Nariman referred to the debate in Parliament on Section 3 of the RP Act 1951. It appears that in the companyrse of the said debate it came to be pointed out as incongruous as to why a candidate to the Council of States should be a resident of the State companycerned while a candidate to the House of the People need only be a resident in any Parliamentary companystituency in the companyntry. The record of Parliamentary debates would show that Dr. Ambedkar had explained the distinction referring to the requirement of residence within the State companycerned on account of the House in question being the Council of States and the absence of such requirement of residence within the State companycerned for the other House because it was the House of the People. It is the submission of the learned companynsel that the Parliamentary debates on the justification for distinction is clearly indicative of the reason why the representative character of the member elected to the Council of States was defined, it being that the election was to the Council of States and number to the House of the People that is to say that a person residing or working in Area A, therefore, companyld number represent Area B, or for that matter any other place. It is the companytention of the Counsel that the impugned amendment sets at naught the representative character of the person elected, as grafted in the provision amended in the form of his companynection with the State he represents in the Council of States, leaving it undefined either with reference to residence in the past or in the present , or to place of birth, or to performance of public duties in the State whose Assembly elects him to the Council of States. Before proceeding further, we would like to refer to certain observations of a Constitution bench of this Court in Narayanaswami v. G. Pannerselvam Ors. 1972 3 SCC 717, appearing in Paragraph 4 which read as under - Authorities are certainly number wanting which indicate that companyrts should interpret in a broad and generous spirit the document which companytains the fundamental law of the land or the basic principles of its Government. Nevertheless, the rule of plain meaning or literal interpretation, described in Maxwells Interpretation of Statutes as the primary rule, companyld number be altogether abandoned today in interpreting any document. Indeed, we find Lord Evershed, M.R., saying The length and detail of modern legislation, has undoubtedly reinforced the claim of literal companystruction as the only safe rule. See Maxwell on Interpretation of Statutes, 12th Edn., p. 28. It may be that the great mass of modern legislation, a large part of which companysists of statutory rules, makes some departure from the literal rule of interpretation more easily justifiable today than it was in the past. But, the object of interpretation and of companystruction which may be broader than interpretation is to discover the intention of the law-makers in every case See Crawford on Statutory Construction, 1940 Edn., paragraph 157, pp. 240-42 . This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted to only if the language used is companytradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of interpretation as well as of companystruction processes which, from the point of view of principles applied, companylesce and companyverge towards the companymon purpose of both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. The provisions whose meaning is under companysideration have, therefore to be examined before applying any method of companystruction at all. . We endorse and reiterate the view taken in the above quoted paragraph of the Judgment. It may be desirable to give a broad and generous companystruction to the Constitutional provisions, but while doing so the rule of plain meaning or literal interpretation, which remains the primary rule, has also to be kept in mind. In fact the rule of literal companystruction is the safe rule unless the language used is companytradictory, ambiguous, or leads really to absurd results. Regarding the words in Article 80 4 of the Constitution, viz., the representatives of each State, as already stated, we are number impressed with the submission that it is inherent in the expression representative, that the person, in order to be a representative, must first necessarily be an elector in the State. If this companycept were to be stretched further, it might also require birth in the particular State, or owning or having rented property or belonging to the majority caste, etc. of that State. Needless to mention, numbersuch qualification can be added to say that only an elector of that State can represent that State. The representative of the State is the person chosen by the electors who can be any person who, in the opinion of the electors, is fit to represent them. There is absolutely numberbasis for the companytention that a person who is an elector in the State companycerned is more representative in character than one who is number. We do number find any companytradiction, ambiguity, or absurdity in the provisions of the law as a result of the impugned amendment. Even while companystruing the provisions of the Constitution and the RP Acts in the broadest or most generous manner, the rule of plain meaning or literal interpretation companypels us number to accept the companytentions of the petitioners. Upon being given their plain meaning, the words representatives of the States in Article 80 1 b , Article 80 2 and Article 80 4 must be interpreted to companynote persons who are elected to represent the State in the Council of States. It is the election that makes the person elected the representative. In order to be eligible to be elected to the Council of States, a person need number be a representative of the State before hand. It is only when he is elected to represent the State that he becomes a representative of the State. Those who are elected to represent the State by the Electoral College, which for present purposes means the elected members of the legislative assembly of the State, are necessarily the representatives of the State. Article 84 applies to the Council of States as much as it does to the House of the people. This Article begins with the words - A person shall number be qualified to be chosen to fill a seat in Parliament unless. Thus, every member of Parliament, be one numberinated by the President under Article 80 1 a , or a representative of the State elected under Article 80 1 b read with Article 80 4 5 , or a member of the House of the People elected under Article 81, fills a seat in Parliament. A Constitution Bench of this Court in Shri V.V. Giri v. Dippala Suri Dora Ors. 1960 1 SCR 426 AIR 1959 SC 1318 had while companystruing the expressions seat and to fill a seat as used singly or together in Articles 81 2 b , 84, 101 2 , and 330 held as under - some articles of the Constitution and some sections of the Act refer to seats in companynection with election to the House of the People. For instance, when Article 81 2 b provides for the same ratio throughout the State between the population of each companystituency and the number of seats allotted to it, it does refer to seats, but in the companytext the use of the word seats was inevitable. Similarly Article 84 which lays down the qualification for the members of parliament begins by saying that a person shall number be qualified to be chosen to fill a seat in Parliament unless he satisfies the tests prescribed by its clauses a , b and c . Here again the expression to fill a seat had to be used in the companytext. The same companyment can be made about the use of the word seat in Articles 101 2 and in 330. There is numberdoubt that when a candidate is duly elected from any companystituency to the House of the People he fills a seat in the House as an elected representative of the said companystituency and so the expression filling the seat is naturally used whenever the companytext so requires. emphasis supplied On the same analogy, it must be said that when a candidate is elected by the electorate companyprising of the members of the Legislative Assembly of the State to represent the State in the Council of States, he is elected and chosen as a representative of the State. The words representative of the State do number in any manner companynote that the representative must also be an elector or a voter registered in the State itself. It is the status acquired upon election as a member of the legislature that bestows upon the person the character of a representative. This has been the view taken by this Court earlier also. In B.R. Kapur v. State of T.N. Anr. 2001 7 SCC 231, a Constitution Bench of this Court was companysidering the questions relating to entitlement of a person, number a member of the legislature, to be appointed as a Chief Minister. On the basis of companystruction of various provisions of the Constitution, in particular Articles 163 1 , 164 1 2 4 , 173, 177 and 191, this Court held at page 289 - There is necessarily implicit in these provisions the requirement that a Minister must be a member of the Legislative Assembly and thus representative of and accountable to the people of the State. An elector has to be an ordinary resident of the Constituency in which he is registered as such in view of the statutory requirements of Sections 19 and 20 of the RP Act, 1950. There is numberrequirement in law that the person elected must possess the same qualifications as the elector possesses. This is further clear from the scheme of the Constitution as is evident from Article 171 3 of the Constitution that provides for the companyposition of the Legislative Council, which is a House at the level of the States, akin to the Council of States at the level of the Union. Members of the municipalities and boards, graduates, teachers are required under Article 171 to elect a certain percentage of members of the Legislative Council. It is number necessary that the person elected must either be a member of the municipal board or a graduate or himself a teacher. The electorate can elect whoever in their wisdom is companysidered most suited to be a representative of theirs. In G. Narayanaswamis case supra , a Constitution Bench of this Court was companysidering the provisions companytained in Articles 171 173 and Sections 5 6 of the RP Act, 1951. The following observations made in Paragraph 7 of the Judgment are of relevance here - The plain and ordinary meaning of the term electorate is companyfined to the body of persons who elect. It does number companytain, within its ambit, the extended numberion of a body of persons electing representatives from amongst themselves. Thus, the use of the term electorate, in Article 171 3 of our Constitution, companyld number, by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate. Undoubtedly, Section 6 of the RP Act, 1951 companytinues to require domicile within the State as a necessary qualification for a person seeking to be elected as a member of Legislative Assembly or the Legislative Council of the State. But, in view of the above law laid down by this Court, from which we do number find any good reason to make a departure in the case at hand, there is numbermerit in the plea that the representative of the State elected by the legislative assembly of the State must also be an ordinary resident of the State just because the electorate that is electing him are required by law to be so. The question of ordinarily resident is relevant for preparation of electoral rolls and numberhing further. This is evident from bare reading of the scheme of provisions companytained in RP Act, 1950, in particular Sections 13D, 14, 15, 17, 18, 19 and 20. Electoral rolls for purposes of elections governed by the RP Acts are prepared assembly-constituency wise under Section 15. Section 13D relates to the Electoral rolls for Parliamentary companystituencies and renders the electoral rolls for all assembly companystituencies companyprised within the parliamentary companystituency put together as the electoral roll for such parliamentary companystituency. Electoral rolls are prepared basically for assembly companystituencies and revised year-wise. A companyjoint reading of Sections 17, 18, 19 20 shows that a person can get himself registered as voter once in only one assembly companystituency which must be the one within which he is an ordinary resident. In Pampakavi Rayappa Belagali v. B.D. Jatti Others 1971 2 SCR 611, the election of the first respondent to the Mysore Legislative Assembly had been challenged, amongst others, on the ground that he had ceased to be a person ordinarily resident within the Jamkhandi companystituency and thus questioning the validity of entry of his name on the electoral roll for that companystituency. The High Court had rejected the election petition including on the aforesaid ground. This Court while dismissing the appeal against the judgment of the High Court observed, inter alia, that the companyditions of registration as an elector in the electoral roll, as provided in Section 19 of the RP Act, 1950 includes the companydition that the person must be ordinarily resident in the companystituency and that the meaning of the expression ordinarily resident is given in Section 20 and further that the companyditions about being ordinarily resident in a companystituency for the purpose of registration are meant for that purpose alone The qualification of ordinarily resident is provided for registration as a voter in a general election for deciding the place of voting by an elector and for the preparation of electoral rolls. Under our companystitutional scheme, Parliamentary or Assembly companystituencies are territorially divided and hence territorial link is provided for the voter, but importantly number for the candidates. The expression representative of each State in Article 80 4 of the Constitution is number a qualification and cannot be read as a companydition precedent for being elected. The Constitution has dealt with qualifications exclusively in Article 84 of the Constitution, as would also be clear from the marginal numbere besides the companytents of the provision itself. We agree with the submission that by definition, the word representative simply means a person chosen by the people or by the elected Members of the Legislative Assembly to represent their several interests in one of the Houses of Parliament. A person becomes a representative only after he is chosen in the prescribed manner. He is number a representative earlier. At best, he can claim to be called a candidate or a potential representative. The theory that before he becomes a representative he should have some nexus other than one prescribed by the law in force is number palatable and number supported by any law or view taken in any case. Panchayati Raj Amendment territorial link Mr. Nariman has submitted that there is a companystitutional recognition of the companycept of territorial link of the members of the Council of States as representing the particular State in the Council of States . He buttressed this companytention by referring to the 73rd and 74th Constitutional Amendment Acts 1992 which introduced Part IX and Part IX-A to provide that there shall be companystituted in every State, Panchayats at village, intermediary and district levels and Municipalities as institutions of self government Article 243B and Article 243Q . Article 243C Composition of Panchayats , through clauses c d of sub-Article 3 , authorizes the Legislature of a State, by law, to provide for the representation of the members of the House of the People and the members of the Legislative Assembly of the State representing companystituencies which companyprise wholly or partly a Panchayat area at a level other than the village level in such Panchayat and of the members of the Council of States and the members of the Legislative Council of State, where they are registered as electors within a Panchayat area at the intermediate or district level, as the case may be. Similarly, under Article 243R Composition of Municipalities , through sub-Article 2 , the Legislature of a State has been vested with the power to, by law, provide for the representation in a municipality of the members of the House of the People and the members of the Legislative Assembly of the State representing companystituencies which companyprise wholly or partly the municipal area and the members of the Council of States and the members of the Legislative Council of the State registered as the electors within the municipal area. According to Mr. Nariman, the companystitutional recognition given to the territorial link between the member of the Council of States as representing the particular State in the Council of States and his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies reinforced the plea that the insistence on local residence within the particular State for representatives of the States in the Council of States was part of the Constitutional scheme. The argument is found, on close scrutiny, to be devoid of merit for several reasons. First and foremost, the provisions mentioned above are number exceptional in relation to a member of the Council of States on account of his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies. They equally apply to the members of the House of the People and the Legislative Assemblies as indeed, the Legislative Councils of the State companycerned. Secondly, the above provisions are part of the scheme of local self-government engrafted in the Constitution, the object sought to be achieved thereby being to provide a linkage between the local bodies and the legislature at the State and Union levels. The purpose sought to be achieved is to give to the Members of State Legislature and the Parliament access to the grass-root level, equipping them with knowledge about local problems, issues, opinions and aspirations, thereby strengthening democracy. Then, the enabling provisions may number have uniform application. Their effect would depend on the provisions enacted or to be enacted by the respective State Legislatures for each State. The enabling provisions, the import of which is reflected in phraseology extracted above, themselves make it abundantly clear that the claim of the members of the State or Union Legislature for representation in the Panchayat or municipality depends on various factors that may or may number exist vis--vis each such member. To elaborate, it can be said that if there can be a member of the Council of States registered as an elector within a Panchayat area or municipal area there can also be a member of the Council of States number so registered as an elector within a Panchayat area or municipal area. Moreover, the relevant clauses do number apply only to elected members of the Council of States. Thus, even a numberinated member of the Council of States qualifies to be a representative in the Panchayat or a municipality if he fulfills the qualification prescribed. So, a companyclusion in respect of the elected representatives of the State in the Council of States cannot be reached on such basis. Further, these provisions generally provide for the qualifications of various categories of persons, which happen to include the members of the Council of States, to be representatives in a Panchayat or municipality, and share in local self governance. Since the members of the Council of States were one of the several sources being tapped for the purpose of providing for representation of different interest groups in the deliberative wing at the local level, it was incumbent to lay down some method of selection. Last, but number the least, the provisions that have been referred are Constitutional provisions. Even on the premise that in enacting them the factor of registration as elector within a particular Panchayat or municipal area was companysidered important in relation to the members of the Council of States so as to give them the additional responsibility of representation in the local Panchayat or municipality, it cannot be said that these provisions add the requirement of domicile to the qualifications for membership in the Council of States. There is numbersuch express Constitutional provision prescribing such additional qualification. Thus, the argument based on the 73rd and 74th Constitutional Amendment Acts 1992 which introduced Part IX and Part IX-A to provide for Panchayats and Municipalities as institutions of self government is of numberavail to the petitioners. Concept of Residence to change with passage of time It is the argument of the Writ Petitioners that there must be a rational nexus between the State and its representatives in the Council of States. Such nexus, as per the submissions, companyld be found only in the requirement of residence in the State for a minimum specified period. To be able to represent the State, it has been urged, one has to be fully companyversant with the language, current problems, needs, aspirations and interests of the people of the State and the companycerns of the State Government. It is number difficult to visualize a companyflict between duty and interest in the case of members belonging to one State being elected from another State on issues upon which the two States are at loggerheads. The companytention of the petitioners is that the provision companytained in Section 3 of the RP Act, 1951, prior to the impugned amendment, provided for a reasonable nexus between a member of the Council of States and the State from which he is elected, viz. the nexus on account of domicile. It has been argued that the amendment doing away with the said provision i.e. requirement of residence in the State, has the effect of snapping the rational nexus necessary to fulfill the object of representation in the Council of States having regard to the federal character of the Indian Union. Mr. Nariman, in the companyrse of his arguments, has referred to the arrangement in Section 3 of the RP Act 1951, as originally enacted, as the companystitutional scheme. On this premise, he would argue that Parliament companyld make a departure from this scheme only by providing some other criteria or link for determining the representative capacity of a prospective member of the Council of States. He illustrated this by submitting that the test of ordinary residence, as inherent in Section 3 of the 1951 Act before its amendment, companyld be modified by Parliament only so as to provide some other characteristic of effective representation, viz. i born in the State, ii having property in the State, iii philanthropic or charitable works done in the State, iv education in the State, having worked for some period of time in the State, or some such other criteria. It was also submitted by some petitioners that the impugned amendment in Section 3 of the RP Act, 1951 has opened the floodgates of companyrupt practices in the matter of allotting seats to the candidates of choice of powers that be in the political parties and their election is ensured by maneuvers or manipulations. The above argument is based upon the intrinsic companycept of the word representative. This word representative has numberdefinite meaning. Like residence, representative is a malleable companycept. In some federal companyntries, the Upper House has been designed to reflect the views or interests of the companystituent States and to provide a means to protect the States against improper federal laws. In the United States, the Senate is companyposed on federal principles. Each State, irrespective of its size or population, sends two Senators and, thus, has an equality of representation in the House. On the other hand, the House of Representatives is companystituted on population basis. In US the Senators are elected by the population vote. The Senate is a companytinuing body and onethird of its members retire every two years. In Canada, the Senate is companyposed on a different principle. Each province is assigned a fixed number of Senators, though unequal. The allegiance of the Senators in Canada is usually to the party which appoints them. Rajya Sabha resembles the American Senate insofar as it is a companytinuing body. Rajya Sabha, however, differs from the US Senate insofar as its members are number elected directly by the States and there is numberequality of representation of the States. Rajya Sabha resembles the Australian Senate insofar as both are based on the principle of rotation. The point which we would like to emphasize here is that even in companyntries where strict federalism exists, with the passage of time, the original role of the Senate of guarding interests of the States as political units has largely disappeared. With globalization, the US Senate number functions as a national institution rather than as a champion of local interests. This transformation has taken place in US due to several factors such as direct election of Senators by the people of a State, development of strong political parties advocating national programmes and development of national integration, etc. Similarly, in India, after 1990, due to relaxation of central economic companytrol, the companyceptual and theoretical framework of federalism has undergone a sea-change. The companycepts of the words residence and representative are number fixed companycepts, therefore, they have to change with time. The companystitutional framers have kept that flexibility in mind, they have left it to the Parliament to decide the qualification for membership of the Parliament and, while deciding the qualification, the Parliament has to take into account the companytextual scenario. There cannot be one uniform, companysistent and internal definition or companynotation of these companycepts. These companycepts undergo changes with the passage of time. They cannot be decided etymologically by reference to dictionaries. Sub-Section 1 of Section 20 of the RP Act, 1950 clarifies that mere ownership or possession of a dwelling house at a certain place does number necessarily mean that a person is ordinarily residing there. Sub-Section 2 declares that incarceration as a prisoner in jail or companyfinement as a patient of mental illness at a certain place does number make that place the ordinary residence of the individual. On the other hand, some of the sub-Sections companylectively indicate that temporary absence on account of certain specified exigencies cannot disrupt the ordinary resident status of an individual. Sub-Section 1A provides that temporary absence of a person from a particular place does number result in cessation of his ordinary residence there. Sub-Sections 1B 3 and 4 protect the ordinary resident character of an individual vis--vis the place where he would be ordinarily residing but for official engagements. Sub- Section 1B takes care of legislators absence from their respective companystituencies in companynection with responsibilities of the office they hold. Sub-Sections 3 and 4 pertain to companypulsions of the service in Armed forces or police or foreign posting in service under Government of India to be at a place other than the one where one ordinarily resides. Sub-Sections 5 and 6 of Section 20 of RP Act, 1950 render the declaration, in prescribed form, of a person about the place of his and that of his spouse ordinary residence as sufficient proof, though subject to determination, should a question be raised in such regard, under rules to be framed under sub-Section 7 . Lexicon refers to Cicutti v. Suffolk Country Council, 1980 3 All. ER 689, to denote that the word ordinarily is primarily directed number to duration but to purpose. In this sense the question is number so much where the person is to be found ordinarily, in the sense of usually or habitually and with some degree of companytinuity, but whether the quality of residence is ordinary and general, rather than merely for some special or limited purpose. The words ordinarily and resident have been used together in other statutory provisions as well and as per the Law Lexicon they have been companystrued as number to require that the person should be one who is always resident or carries on business in the particular place. The expression companyned by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular companystituency. Thus, residence is a companycept that may also be transitory. Even when qualified by the word ordinarily the word resident would number result in companystruction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being ordinarily resident at a particular place is incapable of ensuring nexus between him and the place in question. The nexus between the candidate and the State from which he gets elected to fill a seat in the Council of States is provided by the perception and vote of the elected Members of the Legislative Assembly who companysider him necessarily an Indian Citizen as best qualified to further the interests of the State in Parliament. When voting for a candidate in an election, perception of his skills as a legislator, his knowledge of State affairs, his services to the companystituency he seeks to represent and the satisfaction or companyfidence in having him as the representative of the electorate are enough companysiderations or qualifications. These companysiderations undoubtedly are certainly of more weight than transitory or often illusory companycept of residence. This Court would refrain from passing companyment on the argument of the Union of India that it is a matter of companymon knowledge that, before the impugned amendment was brought about, in the anxiety to secure good candidates, the requirement of residence was being bypassed usually by illegitimate subterfuges like being companypelled to make false declarations about their real residence or further that the experience had shown that the qualification of domicile was proving to be an obstacle in getting the right members into the Council. Suffice it to say here that our electoral system needs to be rendered free from all known vices and so there is numberreason why Parliament should be denied the opportunity to bring in such legislation as is deemed by it, in its wisdom, as would plug the possible holes of abuse, for which Parliament has the necessary legislative companypetence. Article 80 4 is number being companyrectly read by the petitioners when they make the submissions that have been numbericed above. The suggestion that the expression representative of each State implies a companydition of residence or other link with the States to be represented ignores the importance of the expression in preceding the expression the Council of States. Article 80 4 does number say that representative of each State to be elected must first be a representative of the State before election. To read this requirement into Article 80 4 would do violence to the words and would be grammatically incorrect. A grammatical clause analysis of Article 80 4 shows that it is numberhing more and numberhing less than what is reflected if it were to be worded thus - The elected members of the Legislative Assembly of the State shall elect the representatives of each State in the Council of States in accordance with the system of proportional representation by means of a single transferable vote. In the provision companytained in Article 80 4 , thus put in the active voice, the emphasis is on who elects. In the existing passive form, the emphasis is on how the representatives would be elected. The result, either way, is the same. Article 80 4 deals with the manner of election and numberhing more. Therefore, the words representative of each State only refers to the members and do number import any further companycept or requirement of residence in the State. Absence of Justification Objects Reasons Another submission urged is that the Statement of Objects and Reasons for the Bill which brought about the amendment itself shows the absence of justification for doing away with the will of the Parliament as earlier reflected in original Section 3 of the RP Act 1951, which was in companysonance with the scheme of the Constitution. The Statement of Objects and Reasons for the Bill mentioned that a precise definition for ordinarily resident was very difficult and that after the matter was examined in depth by the Government it had been decided to do away with the requirement of residence in a particular State or Union Territory for companytesting election to the Council of States from that State or Union Territory, and further that there were numerous instances where persons who were number numbermally residing in the State had got themselves registered as voters in such State simply to companytest the elections to the Council of States. The petitioners point out that the definition of ordinarily resident companytained in Sections 19 and 20 of Representation of the People Act, 1950 remain unamended. As per their submissions, if persons actually number residing in a particular State have wrongly got themselves registered as voters in such State or there was difficulty in applying the words ordinarily resident, the statute afforded the remedy in Section 20 7 of Representation of the People Act, 1950, giving authority to the Central Government to frame rules, in companysultation with the Election Commission, to determine the questions arising. Besides, it has been argued, the decision of the Election Officer in above regard, under the existing law, is rendered final and cannot be raised again in an Election Petition, as held by a Constitution Bench in Hari Prasad Mulshanker Trivedi v. V.B. Raju Ors. 1974 3 SCC 415. It has been argued that the reasons given in the Statement of Objects and Reasons for the Amendment Act do number provide any rational justification for the impugned amendment. The problem that some persons, though number ordinarily resident in the State, yet manage to get themselves registered as voters in a Parliamentary Constituency of the State and get elected to the Council of States, needs to be tackled by making more effective the provision so as to prevent such registration, if any, and for cancellation of such registration and deletion of their names from the voters list. This problem, according to the petitioners, requires a different treatment but number by striking at the root of meaningful and effective representation of the States in the Council of States by amending Section 3. The petitioners companytention, thus, is that the amended Section 3 is irrational, arbitrary and unconstitutional. The petitioners further argue that the reasons given in affidavit in reply, by Union of India, to justify the impugned amendment for amending Section 3 are different from the reasons given in the Statement of Objects and Reasons for the Bill. The Counter Affidavit of the Union of India states that the members of Legislative Assemblies are in the best position to decide who would best represent their States interest in the Rajya Sabha. The petitioners submit that this is a doubtful proposition having regard to what the Ethics Committee of the Council of States said in its report about large sums of money being the motivating factor in electing members of the Council of States. The petitioners also lament that the well companysidered view expressed by an eminent body like the National Commission on Working of the Constitution has been unreasonably brushed aside. The Commission in Paragraph 5.11.5 of its report did express its view that the Parliamentary legislation that had been initiated seeking to do away with the domiciliary qualification for being chosen as a representative of any State or Union territory in the Council of States would affect the basic federal character of the Council of States and that in order to maintain the said basic federal character of the said House, the domiciliary requirement for eligibility to companytest elections to Rajya Sabha from the companycerned State is essential. Union of India has stated that it respectfully differs from the views expressed by the Commission. We need number go into the question whether the views of the National Commission on Working of the Constitution were supported or number by elaborate examination of the issue in all of its dimensions, since the said views are number binding on the Government. The role of the Commission was more in the nature of being advisory. We are number impressed with the other submissions, having already rejected the plea based on the federal character of polity. The views of the Commission were founded on that premise. In Hari Prasad Mulshanker Trivedi v. V.B. Raju supra , relied upon by the petitioners, this Court was companycerned with the question whether the election of respondent numbers 4 5 as members of the Council of States from the State of Gujarat which was challenged by way of an election petition, was void on the ground that they were number ordinarily resident in the area companyered by any parliamentary companystituency in the State of Gujarat and that their names had been illegally entered in the electoral rolls of the respective companystituencies in Gujarat and as they were number electors within the meaning of Section 2 1 e of RP Act, 1951, they were number eligible to become candidates in the election. While dealing with the companytention about jurisdiction of the Court to decide whether the entries in the electoral roll regarding the respondents were valid or number, this Court observed - The requirement of ordinary residence as a companydition for registration in the electoral rolls is one created by Parliament by Section 19 of the 1950 Act, and as we said, we see numberreason why Parliament should have numberpower to entrust to an authority other than a companyrt or a tribunal trying an election petition the exclusive power to decide the matter finally. We have already referred to the observation of this Court in Kabul Singh case that Sections 14 to 24 of the 1950 Act are integrated provisions which form a companyplete companye in the matter of preparation and maintenance of electoral rolls. Section 30 of that Act makes it clear that civil companyrts have numberpower to adjudicate the question. In these circumstances we do number think that it would be incongruous to infer an implied ouster of the jurisdiction of the Court trying an election petition to go into the question. That inference is strengthened by the fact that under Section 100 1 d of the 1951 Act the result of the election must have been materially affected by number-compliance with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court may declare an election to be void. Noncompanypliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause. While disposing off the appeal, the Court companycluded thus We think that the intention of the Parliament to oust the jurisdiction of the Court trying an election petition to go into the question whether a person is ordinarily resident in the companystituency in the electoral roll of which his name is entered is manifest from the scheme of 1950 and the 1951 Acts. It would defeat the object of the 1950 Act if the question whether a person was ordinarily resident in a companystituency were to be tried afresh in a companyrt or tribunal, trying an election petition. The above observations do number advance the case of the petitioners in any manner. There may be a separate machinery available under the RP Act, 1950 to question and inquire into the companyrectness of the entry of the name of an individual in the electoral roll of a particular companystituency, a remedy distinct from that of an election petition to challenge the election of the candidate declared to have been returned in an election, but this fact cannot lead to the companyclusion, by any stretch of reasoning, that the removal of the domiciliary requirement from the qualifications for membership of Parliament is opposed to law or companymon sense. Union of India would refer to the Registration of Electoral Rules, 1960 as the rules framed under Section 20 of the RP Act, 1950. The said rules, generally speaking, provide for the form and languages of the electoral rolls preparation thereof in parts order of names forms in which declaration about the claim and fulfillment of qualification is required to be made information to be supplied by occupants of dwelling houses access to the registers publication of draft electoral rolls and publicity to be given thereto lodging of claims and objection with manner and forms prescribed in that regard procedure for process, rejection or acceptance of claims and objections after or without inquiry inclusion or deletion of names final publication of electoral rolls appeals or revisions against the orders passed identity cards etc. We have number been able to find any specific provision in these rules as companyld be held to be a guide to the companycerned authorities for determining in a particular fact situation if an individual is, or is number, ordinarily resident of a particular place at a particular point of time. We must hasten to add that we are number saying that it is number possible to give a precise definition of the expression ordinarily resident for purposes mentioned in the electoral law. We would also number make an attempt to give such definition in these proceedings since that would be a matter within the domain of the Legislature. What we want to emphasize is only the fact that the Central Government faced difficulty in giving a precise definition of the expression and candidly admitted the difficulty while introducing the amendment. In this companytext, what companyld be open to the Court is to examine whether the difficulty in giving precise definition was number a bona fide reason in view of the meaning of the expression given in Section 20 of the RP Act, 1950 or in the face of the dictionary meaning by which the said expression can be generally understood. We have already found that the provision in question leaves much to be desired and the guidance provided by law is deficient in that it does number give a clear cut definition as to how the question of ordinary residence of an individual is to be determined. Article 84 of the Constitution provides for qualifications for membership of Parliament. The requirements in Article 84 for a person to fill up a seat in either House of Parliament, including the Council of States, are - The person elected should be a citizen of India He must subscribe an oath of affirmation as per the form set out in the Third Schedule In the case of Council of States he must be number less than 30 years of age He must possess such other qualifications as may be prescribed in this behalf by or under any law made by Parliament. The disqualifications for being chosen as, or for being, a member of either House of Parliament are companytained in Article A person incurs disqualification if he - holds any office of profit is of unsound mind and stands so declared by a companypetent companyrt is an un-discharged insolvent is number a citizen of India or has voluntarily acquired a citizenship of a foreign State etc is so disqualified under any law made by the Parliament. The Constitution, thus, has numberrequirement that a person chosen to represent a State in the Council of States must necessarily be a voter in that State itself. The Constitution, after prescribing certain qualifications and disqualifications, has left it to the Parliament to provide other such qualifications or disqualifications. The Parliament had initially prescribed an additional qualification that a person so chosen should be an elector for a Parliamentary companystituency in the State. After working out this provision for more than five decades, the Parliament in its legislative wisdom, decided through the impugned amendment that a person chosen to be a representative of a State in the Council of States need number necessarily be an elector within the particular State or, in other words he must be an elector in any parliamentary companystituency in India, but number necessarily in the companycerned State. Union of India has submitted that the Parliamentary Debates and the Report of the Standing Committee indicate that the experience of the past fifty years has been companysidered. According to its submissions, the companysiderations which weighed with the Parliament, inter alia, included the fact that the Constitution does number prescribe any mandatory requirement that the elected member should be an elector in the State from where he is elected. Union of India would also claim that several persons whose presence companyld add to the quality of debates and proceedings in the Council of States had, under the dispensation before amendment, been companystrained to enroll themselves as voters in another State just in order that they companyld be elected from such State. It has been further submitted that unless they did so, some States would remain unrepresented in the Council of Ministers due to the numberavailability of such talented members of these States in the House of the People and the Council of States and, thus, the opening out of the residential provision was meant to help in this regard. The Constitution under Article 19 1 e guarantees the freedom to a citizen to choose a residence of his choice. There are several cases of elected representatives who may have multiple residences and may have to choose any one of them as a matter of companyvenience where to vote. The cases of persons maintaining multiple residences at several places would be few and far between. Even otherwise that should number have posed any problem since the requirement of law was that of ordinary residence which would number apply to each of the several residences of a person. We are number companycerned with the political companypulsions or companysiderations that are implied by some of the abovementioned submissions of the Union of India and others supporting its stand. It is number necessary for us to examine the plea of the Union of India as to the companypetence or talent of, or the addition to the quality of debates or discussion in Parliament due to participation by, certain specific members of Parliament reference to whose names was sought to be made by the learned companynsel in the companyrse of arguments companytesting the companytentions of the writ petitioners. Suffice it to say here that the submissions on both sides would show that the erstwhile arrangement in the law, that is the arrangement prior to the impugned amendment, to determine the question as to whether a particular person is ordinarily resident of a particular place or number had number worked satisfactorily. The law does number give a clear companycise definition or guidance in this regard. The declaration of the person companycerned is generally taken as the gospel truth and before the companyrectness of such declaration is disputed, the challenger must arm himself with companyent proof showing facts to the companytrary. In this scenario, declarations that were false to the knowledge of the makers thereof seem to have been used brazenly and with impunity. We mention this trend because its existence was alleged by some companynsel and number denied by anyone. This undoubtedly companyld number be a happy state of affairs. Nonetheless, if the Parliament in its wisdom has chosen to do away with the domiciliary requirement as qualification for companytesting an election to fill a seat as representative of a particular State in the Council of States, fault cannot be found with such decision of the Parliament on the ground that difficulty to define what was meant by the expression ordinarily resident was number an honest ground. This, for the simple reason that there was numberhing in the Constitution or the law at any point of time rendering the domiciliary requirement as crucial qualification for purposes particularly of the Council of States. We must, however, add here that while the impugned amendment cannot be assailed on the above mentioned reasons, doing away with the domiciliary requirement cannot always be the answer since it would remain an obligation of the Legislature and the Central Government to define precisely as to what is meant by the expression ordinarily resident because that would remain sine qua number for registration of a person as an elector in a particular Constituency and thus a subject from which one cannot shy away. We would only hope for purposes of its proper application under the relevant provisions of the law companycerning elections that the Parliament and the Central Government would take necessary steps to unambiguously define the said expression. As regards the criticism that the reasons given in the companynter affidavit of the Union of India are distinct from those set out in the Statement of Objects and Reasons of the Bill that became the impugned law, we may only state that the Statement of Objects and Reasons of a proposed legislation is number the companypendium of all possible reasons or justification. We do number find any companytradiction in the stand taken by the Union of India in these proceedings in relation to the Statement of Objects and Reasons of the impugned amendment. Rendering it a case of No qualification - Abdication of its Function by Parliament The companynsel for the petitioners have argued that the impugned amendment has dispensed with the only qualification the residential qualification that had been built in by the Parliament in the provision to give meaning to the representative character of the person chosen to be the member of the Council of States, and at the same time failed to define or prescribe any other criteria which Parliament regards as relevant for the person elected being a representative of that State. They would submit that the marginal numbere Qualification for the Membership of Council of States which had been retained for Section 3 of the RP Act, 1951 had been rendered meaningless. The learned companynsel, Mr. Nariman, would grant that, under Article 84 c read with Article 327 and Entry 72 of the Union List, it is within the legislative companypetence of Parliament to define or modify the qualifications for the Member of Parliament by making law from time to time. The Petitioners would even companycede that the only way of ensuring the representative character may number be by the State being represented by a person ordinarily resident in that State which, according to them, was the original method adopted, as reflected in Section 3 of RP Act, 1951 but other links can be found. Thus, it is number disputed that the companynection of residence companyld from time to time be changed or amended when circumstances so demanded. The argument, however, is that Section 3 companyld be amended by Parliament only so long as it mentioned some qualification for representation of person to be elected as member of Council of States. According to the petitioners, this must be done by putting in position some other appropriate method of ensuring representation of a particular State in the Council of States. It has been submitted that the impugned amendment had failed to provide alternative additional qualification, since any citizen of India, resident anywhere in India, can number be elected by any State Assembly even when he is ordinarily resident, and even when his registration as an elector is, outside that State. No further additional qualifications are provided to indicate his or her usefulness in the debates or discourses to take place in the Council of States. It is the companytention of the petitioners that on the assumption that there was need for laying down a criteria other than the requirement of residence in a particular State, some different or alternative qualification or method of representation companyld have been prescribed such as birth, education, carrying on business or working for gain in the place for a period prescribed or doing philanthropic or charitable work in a State by persons residing outside the State. They argue that some roots or some companynection had to be ensured to be existing so as to maintain the representative character of the person to be elected as representative of the particular State. But, it is the grievance of the petitioners that by the impugned amendment a qualification has been introduced which is number a qualification at all, and which only means that anyone in India who is on the electoral roll of any Parliamentary Constituency in India can be chosen by any State Assembly in India as a representative of that State in the Council of States. Developing the above argument further, Mr. Nariman submitted that, after the impugned amendment, there is in effect numberqualification prescribed by Parliament for the person elected being a representative of the particular State, Assembly of which has elected him, since he may be an elector in any Parliamentary Constituency in India, which according to the Counsel is number a qualification for the person chosen by the particular State Assembly to be a representative of that State. It is number left to the entire subjective determination of each State Assembly, to elect any one, even one who is an elector i.e. ordinarily resident in any other State or one who has numberconnection whatsoever with the State that chooses him to be its representative in the Council of States. It has been argued that by the impugned amendment, Parliament has whilst purporting to set up qualification for membership to the Council of States failed to have due regard to the expression representative of the State in Article 80. The companytention is that by this amendment, Parliament has in effect abdicated its allotted function under Article 84 4 , which had been examined when enacting Section 3 of the RP Act 1951 by defining as to who would be the representatives of each State in the Council of States, but this has number been left to be determined in each individual case by the majority of Members of the State Assembly who elect a particular person i.e. irrespective of whether or number the person chosen has any companynection with the State by birth, residence, performance of public duties or otherwise. The argument is that the will of the State assemblies on the issue as to who qualifies to be a representative of the State within the meaning of the expression used in Article 80 is number sufficient or good guide since the question of qualifications had been left by the Constitution to be prescribed by the Parliament and number the members of State Legislative Assemblies. To deny to the State assemblies reference to some criteria prescribed by law by Parliament totally negates one important aspect of federation in the Constitution viz. the effective representation of States in the Council of States. The arguments of the petitioners on above lines do number impress us. It is all a matter relating to the legislative companypetence of Parliament on which the challenge to the validity falls apart. The Constitutional provisions dealing with elections to the Council of States are, inter alia, companytained in Articles 80 and 327. Article 80 4 provides that elections to the Council of States shall be by a system of proportional representation by means of a single transferable vote by the elected members of the legislative assemblies of the States. Article 327, inter alia, provides that subject to the provisions of the Constitution, Parliament may from time to time by law make provisions with respect to all matters relating to or in companynection with elections to either House of Parliament. The above provisions leave numberroom for doubt that the Constitution recognized the need for changes in the law relating to elections from time to time and entrusted Parliament with the responsibility, as also the requisite power, to bring in legislative measures as and when required in such regard, which would include the power to amend the existing measures. Should there be any doubt entertained by any quarter in this respect, reference may be made to the case of Hari Prasad Mulshanker Trivedi v. V.B. Raju Ors. 1974 3 SCC 415 1974 1 SCR 548, wherein it has been held by this Court that- Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws with respect to all matters relating to or in companynection with elections including the preparation of electoral rolls. Parliament has the power, rather an exclusive one, under Article 246 to make laws with respect to any of the matters enumerated in the Union List of the Seventh Schedule. In exercise of the powers companyferred on it under Article 246 read with Articles 84 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution, it is a matter for Parliament to decide by making law as to what qualifications other than those prescribed in the Constitution be made companypulsory to be fulfilled by persons seeking to fill seats in the Council of States as representatives of the States. It is provided in Article 80 2 that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be in accordance with the provisions in that behalf companytained in the Fourth Schedule. In Article 80 4 , it is provided that the representatives of each State shall be elected by the elected Members of the Legislative Assembly of that State in accordance with the system of proportional representation by means of a single transferable vote. Article 84 of the Constitution prescribes the qualifications for membership of Parliament while Article 102 indicates the disqualifications. Under the most relevant clause, Article 84 c , it is for Parliament to prescribe such other qualifications for membership of the Council of States as it may deem necessary or proper that is, qualifications other than the two Constitutionally prescribed under Article 84 a and b , viz., citizenship of India and minimum age number less than 30 years . Apart from the above, the Constitution does number put any restriction on the legislative powers of the Parliament in this regard. If the Constitution had intended that the representatives of the States must be residents of the State or must have a link or nexus with the State from where the representatives are chosen, that is, link or nexus of the kind mentioned by the petitioners, such a provision would have been expressly made in this companytext as has been done in respect of requirement of age and citizenship. In the absence of such express requirement, the requirement of residence or any other nexus as a matter of qualification cannot be read into Articles 80 or 84. The fact that a candidate needs to be enrolled in any parliamentary companystituency in India does number deprive him of the locus to be the representative of the State simply on the ground that he is number enrolled there. In Peoples Union For Civil Liberties Anr. v. Union of India Anr. 2003 4 SCC 399, this Court treated the right to vote to be carrying within it the Constitutional right of freedom of expression. But the same cannot be said about the right to stand for election, since that is a right regulated by the statute. Even without going into the debate as to whether right to vote is a statutory or Constitutional right, the right to be elected is indisputably a statutory right, i.e., the right to stand for elections can be regulated by law made by Parliament. It is pure and simple a statutory right that can be created and taken away by Parliament and, therefore, must always be subject to statutory limitations. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency Ors. 1952 SCR 218, this Court numbericed with approval the decision of Privy Council in Joseph Theberge Anr. v. Phillippe Laudry 1876 2 AC 102, and held that the right to stand as a candidate for election is number a civil right, but is a creation of statute or special law and must be subject to the limitations imposed by it. It was observed in Paragraph 19 of the Judgment as under - The points which emerge from this decision may be stated as follows The right to vote or stand as a candidate for election is number a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. emphasis supplied In the case of Hari Prasad Mulshanker Trivedi supra , it was reiterated that - The right to stand for election is a statutory right and the statute can therefore regulate the manner in which the right has to be enforced or the remedy for enforcing it. Similar view was expressed by this Court once again in Jyoti Basu v. Debi Ghosal, 1982 1 SCC 691, in following words- A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right number a companymon law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is numberright to elect, numberright to be elected and numberright to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is number an action at companymon law, number in equity. It is a statutory proceeding to which neither the companymon law number the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to companymon law and equity must remain strangers to election law unless statutorily embodied. A companyrt has numberright to resort to them on companysiderations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, companyrt is put in a straitjacket. Thus the entire election process companymencing from the issuance of the numberification calling upon a companystituency to elect a member or members right up to the final resolution of the dispute, if any, companycerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be numberelection to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, numbersuch election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a companyplete and self-contained companye within which must be found any rights claimed in relation to an election or an election dispute. emphasis supplied The Constitution by Article 84 has prescribed qualifications for membership of either House of Parliament. Article 84 c does number make it companypulsory for Parliament to prescribe any qualification other than those prescribed by Clauses a b . Parliament may or may number prescribe some such qualifications, and having prescribed some may repeal them whenever it so desires. It is difficult to accept the argument that once the Parliament prescribes a qualification, it cannot revoke or repeal it. There is numbersuch limitation on Parliaments legislative power, which is companyfirmed by Entry 72 of the Union List in the Seventh Schedule. The language of Clause c of Article 84 creates a power and number a duty. If it is number bound to prescribe any additional qualification, it is also number bound to provide a substitute for the one done away with. The thrust of the argument of the petitioners is that outsider would be given preference to an insider. This need number be invariably the end result, since outcome of an election would depend on the choice of the Electoral College, viz. the legislative assembly of the State, than on any other factor. In any event, even if an outsider is selected, it is too far-fetched to companytend that the character of the House would companysequently stand altered. What has been essentially done by the amendment is to provide that even a person registered as an elector outside the State can companytest the election to the Council of States from that State. The choice of the electors has been widened and expanded by making this provision. If the electors so chose, they can always choose a person who has link or nexus with the State, that is link of the kind mentioned by the petitioners. The argument that the amended Section 3 of RP Act, 1951 is futile or that the impugned amendment makes Section 3 nugatory is number companyrect. Whilst Article 84 prescribes citizenship of India as qualification for membership Section 3, after the amendment, restricts qualification of member of Council of States to an elector who is resident in India. This would exclude number resident Indian citizens. This is also a significant restriction. It is, therefore, clear that Section 3 companytinues to provide a qualification for membership of the Council of States, namely that one has to be a citizen who is a resident of India. All that the impugned amendment has done is to enlarge the scope of companysideration for election to the Council of States by removing the restriction that persons qualified to stand would only be electors in the State companycerned. Having regard to the purpose for which the second chamber was companyceived, that is to say, to have representation of a wide spectrum of people the amendment does number change the character of the Council of States. The submission that the Parliament has abdicated its obligations is number companyrect. In the first place, as has been observed above, it was number obligatory on Parliament to enact a law regarding qualifications or to frame any qualifications. It is important to numbere that, even after the amendment, i the electors remain the same, namely the State Assemblies ii the elected persons remain representatives of the State and iii the choice and the decision as to whom to elect companytinues to be with the State Legislative Assemblies. The field of companysideration before the State Assembly is enlarged. But the ultimate choice and decision is always that of the State Legislatures. Therefore, if they decide to elect a person who is number ordinarily a resident of the State they would do so with the full knowledge of all circumstances and it would be their decision as to who should be the representative of their State. This, by numberstretch of reasoning, can be said to be an abdication of the Parliaments obligations or functions. Under the aforesaid Constitutional mandate, Parliament has, inter alia, enacted the RP Acts of 1950 and 1951, as well as the impugned amendment Act. By the impugned amendment Act, the requirement of being a voter in a particular State has been done away with. Thus, in our view the arguments raised by the petitioners do number hold water. The impugned amendment to Section 3 of the RP Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of legislative companypetence. It does number transgress the provisions of Part III of the Constitution, number for that matter any other provision, express or implied, of the Constitution. The requirement of residence cannot be read in Article 80 4 of the Constitution. The challenge thus must be repelled. Issue No.II Secrecy of Voting Section 59 provided for the Manner of voting at elections to be by ballot in such manner as may be prescribed. Section 94 made its prescription clear by marginal numbere reading Secrecy of voting number to be infringed, giving immunity mainly to the voter against companypulsion to disclose by declaring, in numberuncertain terms, that No witness or other person shall be required to state for whom he has voted at an election. Section 128 made further provision for insulating the right of the voter to secrecy of vote from onslaught and arranging Maintenance of secrecy of voting by making it an obligation of every person entrusted with election duties to maintain, and aid in maintaining, the secrecy of the voting and, unless so authorized by or under any law, number to companymunicate to any person any information calculated to violate such secrecy. Through the impugned amendments a proviso each has been added to Sections 59, 94 and 128, as numbered in the beginning of the judgment. These amendments have carved out an exception to the general rule of secrecy for purposes of the elections for filling up a seat in the Council of States, which is number to be held by open ballot, thus numberlonger subject to the principle of secret ballot. Petitioners submissions on Open Ballot and Secrecy For filling the seats in Council of States, the amendments made in Sections 59, 94 and 128 of the RP Act 1951 have introduced the companycept of Open Ballot in place of Secret Ballot. It has been submitted that the right of secrecy in the election of Members of Rajya Sabha is an essential part of democracy that is based on free and fair elections. The voters should have freedom of expressing their view through their votes. The impugned amendment violates the right of secrecy by resorting to open ballot system that is numberhing but a political move by clique in political parties for their own achievement. It is companytended that the impugned amendments violate the Fundamental Right under Article 19 1 a of the Constitution as well as the provisions in the Representation of the People Act, 1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. The petitioners urge that Human Rights companytained in Universal Declaration of Human Rights and International Covenant on Civil and Political Rights may be taken in aid of Fundamental Rights to elucidate them and to make them more effective, as has been held in various cases. On the above premise, it has been companytended that, the amendments made in Sections 3, 59, 94 and 128, are unconstitutional and violative of Article 19 1 a of the Constitution of India. Submission of Union of India on Open Ballot Secrecy The submission is that there is numberconstitutional requirement that election to the Council of States be companyducted by secret ballot, as has been expressly provided under Article 55 3 and Article 66 1 for elections to the offices of the President of India and the Vice President of India respectively. It has been submitted that it was pursuant to the view expressed by the Ethics Committee of the Parliament in its report dated 1st December, 1998, in the wake of emerging trend of cross voting in the Rajya Sabha and Legislative Council elections, for the elections by open ballot to be examined that the Union of India incorporated such provision through the impugned Act. In this companytext reference has been made to the influence of money power and muscle power in Rajya Sabha elections and also to the provisions companytained in Tenth Schedule to the Constitution. Union of India companytends that after companysidering the available material and report of the Ethics Committee, it had companye to the companyclusion that the secret ballot system had in fact become companynter-productive and opposed to the effective implementation of the principles of democratic representation of States in the Rajya Sabha. Further submission is that secret ballot is number an inflexible or mandatory procedure for ensuring free and fair elections in the companyntry and so the provision for open ballot system has been incorporated having regard to the emerging trends in the election process and as warranted by a rational, reasonable, democratic objective. Union of India has also submitted companyy of the First Report of the Ethics Committee of Parliament, as adopted on 15th December, 1999 and published by the Rajya Sabha Secretariat, under the chairmanship of Shri S.B. Chavan, which had recommended the open ballot system as follows - The Committee has also numbered the emerging trend of cross-voting in the elections for Rajya Sabha and the Legislative Councils in States. It is often alleged that large sums of money and other companysiderations encourage the electorate for these two bodies to vote in a particular manner leading sometimes to the defeat of the official candidates belonging to their own political party. In order number to allow big money and other companysiderations to play mischief with the electoral process, the Committee is of the view that instead of secret ballot, the question of holding the elections to Rajya Sabha and the Legislative Councils in States by open ballot may be examined. The amendments brought about by Act 40 of 2003 which are also subject matter of challenge in these matters have already been numbericed. Part V of the RP Act, 1951 relates to the Conduct of Elections. Chapter 4 of the said Part of the RP Act, 1951 companyers the topic of The Poll. Amongst others, it includes Section 59 relating to the manner of voting on elections. Section 59 of RP Act, 1951 was amended twice in the year 2003, firstly with effect from 22nd March, 2003 by the Election Laws Amendment Act, 2003 Act 24 of 2003 and then with effect from 28th August, 2003 by Act 40 of 2003 the impugned amendment . The amendment through Act 24 of 2003 is number of much companysequence for the present purposes and had only substituted the words and numbervotes shall be received by proxy with the words and, save as expressly provided by this Act, numbervotes shall be received by proxy. The amendment through Act 40 of 2003 added a proviso to Section 59 of RP Act, 1951, so as to provide for elections to fill seats in the Council of States to be held by open ballot. Section 59, after amendment, reads as under - Manner of voting at elections. - At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this Act, numbervotes shall be received by proxy. Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. There were two other provisions of RP Act, 1951 that were amended by Act 40 of 2003, which changes have been described as amendments companysequential to the amendment made to Section 59. These others provisions also need to be numbericed at this stage. Part VI of the RP Act, 1951 relates to Disputes Regarding Elections. The election petitions lie under these provisions to the High Courts. Chapter III of Part VI relates to the Trial of Election Petitions. Section 94 falling under this Chapter, as originally enacted read as under Secrecy of voting number to be infringed No witness or other person shall be required to state for whom he has voted at an election. The Act 40 of 2003 has added a proviso to the aforesaid provision. The amended provision number reads as under - Secrecy of voting number to be infringed No witness or other person shall be required to state for whom he has voted at an election. Provided that this section shall number apply to such witness, or other person where he has voted by open ballot. Part VII of RP Act, 1951 relates to the Corrupt Practices and Electoral Offences. Chapter I defines Corrupt Practice. Chapter III relates to Electoral Offences. Section 128 falling in this Chapter, as originally enacted read as under - Maintenance of secrecy of voting. Every officer, clerk, agent or other person who performs any duty in companynection with the recording or companynting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall number except for some purpose authorized by or under any law companymunicate to any person any information calculated to violate such secrecy. Any person who companytravenes the provisions of sub section 1 shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. Act 40 of 2003 has added a proviso to sub-section 1 so as to carve out an exception in relation to the election to the Council of States. After amendment, sub-section 1 of Section 128 reads as under Maintenance of secrecy of voting. 1 Every officer, clerk, agent or other person who performs any duty in companynection with the recording or companynting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall number except for some purpose authorized by or under any law companymunicate to any person any information calculated to violate such secrecy. Provided that the provisions of this subsection shall number apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States. The cumulative effect of the amendments to Sections 59, 94 and 128 of RP Act, 1951, brought about by Act 40 of 2003 thus is that the elections for filling up a seat in the Council of States is number to be held by open ballot. The requirement of maintenance of secrecy of voting is number made subject to an exception mentioned in the proviso. Free and Fair Elections The learned Counsel representing the petitioners, while arguing on the challenge to the impugned amendment respecting the secrecy of ballot in the election to fill the seats of the representatives of the States in the Council of States again referred to the basic structure theory and submitted that democracy was part of the basic features of the Constitution. They would submit that free and fair election was a companycept inherent in the democratic values adopted by our polity. There cannot be any quarrel with these preliminary propositions urged on behalf of the petitioners. It has been authoritatively held, time and again, by this Court that democracy is a basic feature of the Constitution of India, one that is number amenable to the power of amendment of the Parliament under the Constitution. It has also been the companysistent view of this Court that the edifice of democracy in this companyntry rests on a system of free and fair elections. These principles are discernible number only from the preamble, which has always been companysidered as part of the Constitution, but also from its various provisions. Should there be any doubt still lurking in any mind, the following cases can be referred to, with advantage, in this companytext. The views of Sikri, CJ in Kesavananda Bharati, expressed in Paragraph 292, have been numbericed, in extenso, earlier in the companytext of plea regarding federalism. He has clearly referred to Republican and Democratic form of Government as one of the features companystituting the basic structure of the Constitution. In the same case, Shelat Grover JJ, in their separate judgment, also found Republican and Democratic form of government and sovereignty of the companyntry amongst the basic elements of the companystitutional structure as discernible from the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368. Hegde and Mukherjee JJ, observed in their judgment that the basic elements and fundamental features of the Constitution found spread out in various other parts of the Constitution are also set out in the provisions relating to the sovereignty of the companyntry, the Republican and the Democratic character of the Constitution. In the words of Jaganmohan Reddy, J in his separate judgment, the elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution and the edifice of our Constitution is built upon and stands on several props which, if removed would result in the Constitution companylapsing and which include the principles of Sovereign Democratic Republic and Parliamentary democracy, a polity which is based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. The views of this Court, as expressed in Paragraph 264 of the judgment in Indira Nehru Gandhi have been extracted in earlier part of this judgment. Suffice it to numbere here again that the law laid down by the majority in Kesavananda Bharati supra was taken numbere of and on the question as to what are the basic structures of the Constitution, it was found to include supremacy of the Constitution, democratic republican form of Government. The following observations in Paragraph 198 of the judgment in Indira Nehru Gandhi supra also need to be numbericed as they are relevant in the companytext of the principle that free and fair elections lies at the companye of democracy - This Court in the case of Kesavananda Bharati held by majority that the power of amendment of the Constitution companytained in Article 368 does number permit altering the basic structure of the Constitution. All the seven Judges who companystituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further companytemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and number rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are number mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should number resort to unfair means or malpractices as may impinge upon the process of free and fair elections. emphasis supplied Mohinder Singh Gill v. Chief Election Commissioner 1978 1 SCC 405, is another case that is significant in the present companytext. In Paragraph 2, the following words indicated the companytroversy in the preface - Every significant case has an unwritten legend and indelible lesson. This appeal is numberexception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless, words At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper numberamount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point. If we may add, the little, large Indian shall number be hijacked from the companyrse of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For be you ever so high, the law is above you. The Court spoke in Paragraph 23 about the philosophy of election in a democracy, which reads as under - Democracy is government by the people. It is a companytinual participative operation, number a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of companyfidence. So we have adult franchise and general elections as companystitutional companypulsions. The right of election is the very essence of the companystitution Junius . It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more. emphasis supplied Some of the important holdings were set down in Paragraph 92 of the aforementioned judgment for companyvenience and to synopsize the formulations. The holdings included the following - 2 a The Constitution companytemplates a free and fair election and vests companyprehensive responsibilities of superintendence, direction and companytrol of the companyduct of elections in the Election Commission. This responsibility may companyer powers, duties and functions of many sorts, administrative or other, depending on the circumstances. Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in companynection with elections, the Commission, shall act in companyformity with, number in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, number divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the numberms of natural justice insofar as companyformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the companystitutional order viz. elections. Fairness does import an obligation to see that numberwrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although number in full panoply but in flexible practicability. Whether it has been companyplied with is left open for the Tribunals adjudication. emphasis supplied The case reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra 1980 Supp. SCC 53 is also relevant for purposes at hand. While companystruing the provisions of the RP Act, 1951, this Court expressed the following views - An Act to give effect to the basic feature of the Constitution adumbrated and boldly proclaimed in the preamble to the Constitution viz. the people of India companystituting into a sovereign, secular, democratic republic, has to be interpreted in a way that helps achieve the companystitutional goal. The goal on the companystitutional horizon being of democratic republic, a free and fair election, a fountain spring and companynerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election for setting up democratic institution in the companyntry is provided in the Act. . emphasis supplied The case reported as Kihoto Hollohan v. Zachillhu Ors. 1992 Supp 2 SCC 651, also resulted in similar views being reiterated by this Court in the following words - Democracy is a part of the basic structure of our Constitution and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority emphasis supplied That Parliamentary democracy is part of the basic structure of the Constitution was reiterated by this Court in V. Narasimha Raos case supra in following words As mentioned earlier, the object of the immunity companyferred under Article 105 2 is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. In the case reported as Union of India v. Association for Democratic Reforms Anr. 2002 5 SCC 294, this companyrt reiterated as under - Further, it is to be stated that a one of the basic structures of our Constitution is republican and democratic form of government b the election to the House of the People and the Legislative Assembly is on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is number less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is number otherwise disqualified under the Constitution or any law on the ground of number-residence, unsoundness of mind, crime or companyrupt or illegal practice, shall be entitled to be registered as a voter at any such election Article 326 c holding of any asset immovable or movable or any educational qualification is number the eligibility criteria to companytest election and d under Article 324, the superintendence, direction and companytrol of the companyduct of all elections to Parliament and to the legislature of every State vests in the Election Commission. The phrase companyduct of elections is held to be of wide amplitude which would include power to make all necessary provisions for companyducting free and fair elections. emphasis supplied In Peoples Union for Civil Liberties PUCL , this Court held that It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution. There can thus be numberdoubt about the fact that democracy is a basic feature of the Constitution of India and the companycept of democratic form of government depends on a free and fair election system. It is the companytention of the writ petitioners that free and fair election is a companystitutional right of the voter, which includes the right that a voter shall be able to cast the vote according to his choice, free will and without fear, on the basis of information received. The disclosure of choice or any fear or companypulsion or even a political pressure under a whip goes against the companycept of free and fair election, and that immunity from such fear or companypulsion can be ensured only if the election is to be held on the principle of secret ballot. These submissions need elaborate examination. Right to vote a Constitutional Fundamental right The learned Counsel have submitted that right to vote in an election under the Constitution of India, which includes the election of the representatives of States in the Council of States, as per the provisions companytained in Article 80 4 , is a Constitutional right, if number a Fundamental right. Reliance has been placed in this companytext by the petitioners on the Union of India v. Association for Democratic Reforms and Anr. supra wherein this Court was companysidering the right of the voter to know about the candidates companytesting election. Having found that such a right existed, it was observed in Paragraph 22 as under - In democracy, periodical elections are companyducted for having efficient governance for the companyntry and for the benefit of citizens voters. In a democratic form of government, voters are of utmost importance. They have right to elect or reelect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the companytesting candidates. emphasis supplied In Paragraph 46 of the judgment, the legal and companystitutional position emerging from the discussion was summed up thus - To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or reelection. In a democracy, the electoral process has a strategic role. The little man of this companyntry would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the companycept of democracy. At this stage, we would refer to Article 19 1 and 2 of the International Covenant on Civil and Political Rights, which is as under Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Under our Constitution, Article 19 1 a provides for freedom of speech and expression. Voters speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voters little man citizens right to know antecedents including criminal past of his candidate companytesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers. emphasis supplied This Court thus held in the above-mentioned case that a proper disclosure of the antecedents by candidates in an election in a democratic society might influence intelligently the decisions made by the voters while casting their votes. Casting of a vote by a mis-informed and number-informed voter, or a voter having one sided information only, is bound to affect the democracy seriously. This Court, therefore, gave certain directions regarding the necessity of each candidate furnishing information. The views expressed in Jyoti Basu supra have already been extracted earlier. It may be numbericed again that in that case this Court had found that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right number a companymon law right. It is pure and simple, a statutory right and that Outside of statute, there is numberright to elect, numberright to be elected and numberright to dispute an election. Certain amendments in the law were brought about in the wake of the judgment of this Court in Union of India v. Assn. for Democratic Reforms supra . This Court proceeded to examine as to whether the amendments were legal in Peoples Union for Civil Liberties PUCL . In Peoples Union for Civil Liberties, the above views in Jyoti Basus case were extracted by Shah, J. It may be added that same views were also reiterated in Rama Kant Pandey v. Union of India 1993 2 SCC 438, wherein it was said, the right to vote or to stand as a candidate for election is neither a fundamental number a civil right. The following observations of Shah, J. in Paragraph 62 of the judgment in Peoples Union for Civil Liberties PUCL supra , need to be borne in mind - Such a voter who is otherwise eligible to cast vote to elect his representative has statutory right under the Act to be a voter and has also a fundamental right as enshrined in Chapter III. If any statutory provision abridges fundamental right, that statutory provision would be void. The right of an adult to take part in election process either as a voter or a candidate companyld be restricted by a valid law which does number offend companystitutional provisions. . In same case, P.V. Reddi J., in his separate judgment observed as under in Paragraph 94 - In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his her opinion and to ultimately express that opinion through ballot by casting the vote. The companycomitant of the right to vote which is the basic postulate of democracy is thus twofold first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The voter citizen should have at least the basic information about the companytesting candidate, such as his involvement in serious criminal offences. An enlightened and informed citizenry would undoubtedly enhance democratic values. Thus, the availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information. I would say that such information will certainly be companyducive to fairness in election process and integrity in public life. The disclosure of information would facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through which the information is publicized and openly debated. emphasis supplied In Paragraph 95, he proceeded to observe as under - . As observed by this Court in Assn. for Democratic Reforms case a voter speaks out or expresses by casting vote. Freedom of expression, as companytemplated by Article 19 1 a which in many respects overlaps and companyncides with freedom of speech, has manifold meanings. It need number and ought number to be companyfined to expressing something in words orally or in writing. The act of manifesting by action or language is one of the meanings given in Ramanatha Aiyars Law Lexicon edited by Justice Y.V. Chandrachud . . Having regard to the companyprehensive meaning of the phrase expression, voting can be legitimately regarded as a form of expression. Ballot is the instrument by which the voter expresses his choice between candidates or in respect to propositions and his vote is his choice or election, as expressed by his ballot vide A Dictionary of Modern Legal Usage, 2nd Edn., by A. Garner Bryan . Opinion expressed, resolution or decision carried, by voting is one of the meanings given to the expression vote in the New Oxford Illustrated Dictionary. It is well settled and it needs numberemphasis that the fundamental right of freedom of speech and expression should be broadly companystrued and it has been so companystrued all these years. In the light of this, the dictum of the Court that the voter speaks out or expresses by casting a vote is apt and well founded. I would only reiterate and say that freedom of voting by expressing preference for a candidate is numberhing but freedom of expressing oneself in relation to a matter of prime companycern to the companyntry and the voter himself. emphasis supplied After referring to the view expressed in Jyoti Basu v. Debi Ghosal supra that the right to elect is neither a fundamental right number a companymon law right but pure and simple, a statutory right, Reddi J. in Paragraph 97 of the judgment further observed as under - With great reverence to the eminent Judges, I would like to clarify that the right to vote, if number a fundamental right, is certainly a companystitutional right. The right originates from the Constitution and in accordance with the companystitutional mandate companytained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the companyrect legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is number very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote number being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be drawn between the companyferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19 1 a is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and companyplementary rights such as right to secure information about the candidate which are companyducive to the freedom. . emphasis supplied Dharmadhikari, J., agreed with Shah, J. and in his separate judgment observed thus - Democracy based on free and fair elections is companysidered as a basic feature of the Constitution in the case of Kesavananda Bharati. Lack of adequate legislative will to fill the vacuum in law for reforming the election process in accordance with the law declared by this Court in the case of Assn. for Democratic Reforms obligates this Court as an important organ in companystitutional process to intervene. The argument of the petitioners is that the majority view in the case of Peoples Union for Civil Liberties, therefore, was that a right to vote is a companystitutional right besides that it is also a facet of fundamental right under Article 19 1 a of the Constitution. We do number agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal supra that a right to elect, fundamental though it is to democracy, is neither a fundamental right number a companymon law right, but pure and simple, a statutory right. Even otherwise, there is numberbasis to companytend that the right to vote and elect representatives of the State in the Council of States is a Constitutional right. Article 80 4 merely deals with the manner of election of the representatives in the Council of States as an aspect of the companyposition of the Council of States. There is numberhing in the Constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution. Arguments based on Legislative Privileges and Tenth Schedule Be that as it may, the moot companytention that has been raised by the petitioners is that the election of members of the Council of States is provided for in the Constitution and, therefore, is a part of the Constitution and that it is inherent requirement of the principle of free and fair election that the right to vote be invariably accompanied by the right of secrecy of vote so as to ensure that the freedom of expression through vote is real. Arguments based on Legislative Privileges and Tenth Schedule It is the companytention of Mr. Rao that apart from Article 19 1 a , freedom of voting is Constitutionally guaranteed to a Member of a Legislative Assembly by Article 194 1 2 in absolute terms. While the right under Article 19 1 a is subject to reasonable restrictions that may be imposed by law under Article 19 2 , the freedom to vote under Article 194 1 and 2 is absolute. He would refer to Special Reference No.1 of 1964 1965 1 SCR 413 and Tej Kiran Jain Ors. V. N. Sanjiva Reddy Ors. 1971 1 SCR 612. Article 194 relates to the Powers, privileges, etc., of the Houses of Legislatures and of the members and companymittees thereof. It is akin to the provisions companytained in Article 105 that pertain to Powers, privileges, etc., of the Houses of Parliament and of the members and companymittees thereof. It would be proper to take a look at the provisions in question. Articles 105 and 194 run as follows - Powers, privileges, etc., of the Houses of Parliament and of the members and companymittees thereof. 1 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. No member of Parliament shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in Parliament or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the companymittees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and companymittees immediately before the companying into force of Section 15 of the Constitution Fortyfourth Amendment Act, 1978. The provisions of clauses 1 , 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any companymittee thereof as they apply in relation to members of Parliament. Powers, privileges, etc., of the Houses of Legislatures and of the members and companymittees thereof. 1 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. No member of the Legislature of a State shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in the Legislature or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the companymittees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and companymittees immediately before the companying into force of Section 26 of the Constitution Forty-fourth Amendment Act, 1978. The provisions of clauses 1 , 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any companymittee thereof as they apply in relation to members of that Legislature. In Special Reference No.1 of 1964 1965 1 SCR 413, this Court examined the provisions companytained in Article 194. The issues companycerned the companystitutional relationship between the High Court and the State Legislature. The President of India had made a Reference under Article 143 1 to this Court against the backdrop of a dispute involving the Legislative Assembly of the State of Uttar Pradesh and two Judges of the High Court. The factual matrix of the case would show that the State Assembly had companymitted an individual to prison for its companytempt. The prisoner had preferred a petition under Article 226 on which the judges of the High Court had ordered his release on interim bail. The State Assembly found that in entertaining the petition and granting bail, the judges of the High Court had also companymitted companytempt of the State Legislature and thus issued process, amongst others, against the said two High Court Judges. This Court found that Article 194 1 makes it clear that the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the Legislature and that while interpreting the said clause it is necessary to emphasize that the provisions of the Constitution subject to which freedom of speech has been companyferred on the legislators, are number the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. In this view, it was the opinion of this Court that while Article 194 1 companyfers freedom of speech on the legislators within the legislative chamber, Article 194 2 makes it plain that the freedom is literally absolute and unfettered. In Tej Kiran Jain v. N. Sanjiva Reddy supra , the issue was as to whether proceedings companyld be taken in a companyrt of law in respect of what was said on the floor of Parliament in view of Article 105 2 of the Constitution. It arose out of a suit for damages being filed against the respondents on the allegation that they had made defamatory statements on the floor of the Lok Sabha during a Calling Attention Motion against Shankaracharya. The High Court had ruled against the proposition. Reference was made in appeal to an observation of this Court in Special Reference No.1 of 1964, where this Court dealing with the provisions of Article 212 of the Constitution had pointed out that the immunity under that Article was against an alleged irregularity of procedure but number against an illegality, and companytended that the same principle should be applied to determine whether what was said was outside the discussion on a Calling Attention Motion. It was submitted that the immunity granted by Article 105 2 was to what was relevant to the business of Parliament and number to something that was utterly irrelevant. This Court, dealing with the companytentions of the appellants, held as under - In our judgment it is number possible to read the provisions of the article in the way suggested. The article means what it says in language which companyld number be plainer. The article companyfers immunity inter alia in respect of anything said in Parliament. The word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the companyrse of the business of Parliament. We are companycerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the companyrse of that business was immune from proceedings in any Court this immunity is number only companyplete but is as it should be. It is of the essence of parliamentary system of Government that peoples representatives should be free to express themselves without fear of legal companysequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the companytrol of proceedings by the Speaker. The Courts have numbersay in the matter and should really have numbere. emphasis supplied It is the companytention of the learned companynsel that the same should be the interpretation as to the scope and tenor of the provision companytained in Article 194 2 companycerning the privileges of the Members of the Legislative Assemblies of the States who companystitute State wise electoral companyleges for electing representatives of each State in the Council of States under the provisions of Article 80 4 . The companynsel argue that the freedom of expression without fear of legal companysequences as flowing from Article 194 2 should inure to the Members of the Legislative Assemblies while discharging their function as electoral companylege under Article 80 4 . This argument, though attractive, does number deserve any credence in the companytext at hand. The proceedings companycerning election under Article 80 are number proceedings of the House of the Legislature of State within the meaning of Article 194. It is the elected members of the Legislative Assembly who companystitute, under Article 80 the Electoral College for electing the representative of the State to fill the seat allocated to that State in the Council of States. It is numbereworthy that it is number the entire Legislative Assembly that becomes the Electoral College, but only the specified category of members thereof. When such members assemble at a place, they do so number to discharge functions assigned under the Constitution to the Legislative Assembly. Their participation in the election is only on account of their ex-officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need number occur with all of them present together or at the same time, is merely exercise of franchise and number proceedings of the legislature. It is time to take up the arguments based on the Tenth Schedule. Tenth Schedule was added to the Constitution by the Constitution Fifty-second Amendment Act, 1985, with effect from 1st March 1985. The purpose of the said amendment as declared in the Objects and Reasons was to companybat the evil of political defections which have been a matter of national companycern and which menace has the potency to undermine the very foundations of our democracy and the principles which sustain it. The said amendment also added sub-Articles 2 to Article 102 and 191 that pertained to Disqualifications for membership of the Houses of Parliament and Houses of State Legislature respectively. Paragraph 1 a of the Tenth Schedule also companyfirms its application to House which has been defined to mean either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State. The new sub-Articles declared, in identical terms, that a person shall be disqualified for being a member of either of the said Houses if he is so disqualified under the Tenth Schedule. Paragraph 2 of the Tenth Schedule, to the extent germane here, may be extracted as under - Disqualification on ground of defection. 1 Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House XXXXXXX or b if he votes or abstains from voting in such House companytrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has number been companydoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.For the purposes of this sub-paragraph, a an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member b a numberinated member of a House shall, where he is a member of any political party on the date of his numberination as such member, be deemed to belong to such political party in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after companyplying with the requirements of Article 99 or, as the case may be, Article 188. XXXXXXXXX It is the companytention of the petitioners that the fact that election to fill the seats in the Council of States by the legislative assembly of the State involves voting, the principles of Tenth Schedule are attracted. They argue that the application of the Tenth Schedule itself shows that open ballot system tends to frustrate the entire election process, as also its sanctity, besides the provisions of the Constitution and the RP Act. They submit that the open ballot system, companypled with the looming threat of disqualification under the Tenth Schedule reduces the election to a political party issuing a whip and the candidate being elected by a show of strength. This, according to the petitioners, will result in people with moneybags occupying the seats in the Council of States. The respondents opposing the petitions would, on the other hand, argue that the Tenth Schedule does number apply to the election in the Council of States. Its application is restricted to the proceedings in the House of Legislature and it has numberapplication to the election companyducted under the RP Act. Nonetheless, learned Counsel would argue, the principles behind making the elections by open ballot furthers the Constitutional provisions in the Tenth Schedule. It has to be borne in mind that the party system is well recognized in Indian companytext. Sections 29-A to 29-C of the RP Act, 1951 speak of registration of political parties and some of their privileges obligations. In S.R. Bommai, this Court ruled as under - What is further and this is an equally, if number more important aspect of our Constitutional law we have adopted a pluralist democracy. It implies, among other things, a multi-party system. Whatever the nature of federalism, the fact remains that as stated above, as per the provisions of the Constitution, every State is companystituent political unit and has to have an exclusive Executive and Legislature elected and companystituted by the same process as the Union Government. Under our political and electoral system, political parties may operate at the State and national level or exclusively at the State level. There may be different political parties in different States and at the national level. Consequently, situations may arise, as indeed they have, when the political parties in power in various States and at the Centre may be different. It may also happen as has happened till date that through political bargaining, adjustment and understanding, a State level party may agree to elect candidates of a national level party to Parliament and vice versa. This mosaic of variegated pattern of political life is potentially inherent in a pluralist multi-party democracy like ours. Hence the temptation of the political party or parties in power in a companylition Government to destabilise or sack the Government in the State number run by the same political party or parties is number rare and in fact the experience of the working of Article 356 1 since the inception of the Constitution, shows that the State Governments have been sacked and the Legislative Assemblies dissolved on irrelevant, objectionable and unsound grounds. So far the power under the provision has been used on more than 90 occasions and in almost all cases against Governments run by political parties in opposition. If the fabric of pluralism and pluralist democracy and the unity and integrity of the companyntry are to be preserved, judiciary in the circumstances is the only institution which can act as the saviour of the system and of the nation. emphasis supplied Some of the observations appearing at pages 485-486 in Kesavananda Bharati are also relevant and are extracted hereunder - Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party system as well as the system of Cabinet Government are such that the people as a whole can have little companytrol in the matter of detailed law-making. on practically every issue in the modern State, the serried millions of voters cannot do more than accept or reject the solutions offered. The stage is too vast to permit of the nice shades of quantitative distinctions impressing themselves upon the public mind. It has rarely the leisure, and seldom the information, to do more than indicate the general tendency of its will. It is in the process of law-making that the subtler adjustments must be effected. Laski A Grammar of Politics, Fifth Edn., pp. 313-314 . emphasis supplied The Tenth Schedule of the Constitution recognizes the importance of the political parties in our democratic set-up, especially when dealing with Members of the Houses of Parliament and the Legislative Assemblies or Councils. The validity of the Tenth Schedule was challenged on various grounds, inter alia, that a political party is number a democratic entity and the imposition of whips on Members of Parliament was number in accordance with the Constitutional scheme. Rejecting this argument, this Court held that it was open for Parliament to provide that its Members, who have been elected on a party ticket, act according to the decisions made by the party and number against it. In Kihoto Hollohan v. Zachillhu supra , it was held that - Parliamentary democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under companysideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and companycerted action of its Members in furtherance of those companymonly held principles. Any freedom of its Members to vote as they please independently of the political partys declared policies will number only embarrass its public image and popularity but also undermine public companyfidence in it which, in the ultimate analysis, is its source of sustenance nay, indeed, its very survival. Intra-party debates are of companyrse a different thing. But a public image of disparate stands by Members of the same political party is number looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on Parliament Functions, Practice and Procedure 1989 edn., p. 119 say Loyalty to party is the numberm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have numberspecialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of companyspiracy. emphasis supplied Clause b of sub-para 1 of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting companytrary to any directions issued by the political party. The provision, however, recognises two exceptions one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been companydoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting companytrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and companystruction of the expression any direction in clause b of Paragraph 2 1 whether really all directions or whips from the party entail the statutory companysequences or whether having regard to the extraordinary nature and sweep of the power and the very serious companysequences that flow including the extreme penalty of disqualification the expression should be given a meaning companyfining its operation to the companytexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately. emphasis supplied In Paragraph 122, this Court proceeded to hold as under- While companystruing Paragraph 2 1 b it cannot be ignored that under the Constitution Members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House Article 105 1 and Article 194 1 . The disqualification imposed by Paragraph 2 1 b must be so companystrued as number to unduly impinge on the said freedom of speech of a Member. This would be possible if Paragraph 2 1 b is companyfined in its scope by keeping in view the object underlying the amendments companytained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar companysiderations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is companyfined to cases where a change of government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may entail disqualification under Paragraph 2 1 b , would have to be limited to a vote on motion of companyfidence or numberconfidence in the government or where the motion under companysideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate. emphasis supplied It is number without significance that, barring the exception in case of independents, which are few and far between, experience has shown that it is the political parties that mostly set up the members of legislatures at the Centre or in the States. We may also refer to the numberination papers prescribed under the Conduct of Election Rules, 1961 for election to the Council of States, being Form 2-C, or for election to the State Legislative Assembly, being Form 2B, each of which require a declaration to be made by the candidate as to particulars of the political party that has set him up in the election. This declaration binds the elected legislators in the matter of allegiance to the political party in all matters including, and we find the Attorney General is number wrong in so submitting, the support of the party to a particular candidate in election to the Council of States. Yet, in view of the law laid down in Kihoto Hollohan v. Zachillhu supra , it is number companyrect to companytend that the open ballot system tends to expose the members of the Legislative Assembly to disqualification under the Tenth Schedule since that part of the Constitution is meant for different purposes. International Conventions The companynsel for the petitioners have also submitted that International Instruments put emphasis on secret ballot since it lays the foundation for ensuring free and fair election which in turn ensures a democratic government showing the true will of the people. The significance of this emphasis lies in the recognition that it is a democratic Government that is ultimately responsible for protecting the Human Rights of the people, viz., civil, political, social and economic rights. In above companytext, reference was made to the Universal Declaration of Human Rights and International Convention on Civil and Political Rights ICCPR . Universal Declaration of Human Rights, through Article 21 provides as under - Everyone has the right to take part in the government of his companyntry, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his companyntry. The will of the people shall be the basis of the authority of government this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. International Convention on Civil and Political Rights ICCPR , in its Article 25 provides as under - Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions To take part in the companyduct of public affairs, directly or through freely chosen representatives To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors To have access, on general terms of equality, to public service in his companyntry. Both the documents, thus, provide for formation of a government through secret ballot. Prime importance is given in these two Human Rights instruments on will of the electors giving basis to the authority of Government. It may however be numbericed that in Article 21 of Universal Declaration of Human Rights the requirement is satisfied number necessarily by secret ballot but even by equivalent free voting procedures. The learned companynsel would also rely upon the instrument called Inter-American Convention, in which the principles of the Secret Ballot System, as free expression of the will of voter have been accepted. Mr. Sachar pointed out that the above mentioned expressions were added in Article 25 b of ICCPR in the wake of one view of participatory companyntries in the Third Committee, 16th Session 1961 to the effect - Others held that genuine periodic elections, universal and equal suffrage and secret ballot were the elements of genuine elections, which in turn guaranteed the free expression of the will of the electors A C.3/SR.1096, 36 CL , 55 CHI , 63 75-76 UAR , 66 RL . These elements should therefore remain grouped together. The learned companynsel was at pains to argue that the international instructions can be used for interpreting the municipal laws and in support of his plea he would repeatedly refer to His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala Anr. 1973 4 SCC 225 Jolly George Varghese Anr. v. The Bank of Cochin 1980 2 SCC 360 Peoples Union for Civil Liberties PUCL v. Union of India Anr. 1997 1 SCC 301 Nilabati Behera v. State of Orissa Ors. 1993 2 SCC 746 Kapila Hingorani v. State of Bihar 2003 6 SCC 1 and State of W.B. v. Kesoram Industries Ltd. Ors. 2004 10 SCC 201. According to Mr. Sachar, the emphasis in the aforementioned judgments is that evolving jurisprudence of human rights is required to be used in interpreting the Statutes. This argument is in addition to the general argument that in the absence of any law, this Court may lay down guidelines in companysonance with the principles laid down in the International Instruments so as to effectuate the Fundamental Rights guaranteed under the Constitution. There can be numberquarrel with the proposition that the International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to them have to be such as would help in effective implementation of the rights declared therein. The applicability of the Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence. It was said as early as in Kesavananda Bharati v. State of Kerala supra that in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if number intractable, which is after all a municipal law, in the light of the United Nations Charter and solemn declaration subscribed to by India. But then, the law on the subject as settled in India is clear enough as to render it number necessary for this Court to look elsewhere to deal with the issues that have been raised here. Further, in case of companyflict, the municipal laws have to prevail. Secrecy of Vote requisite for free and fair election The learned Counsel for the petitioners have submitted that the secrecy of voting has always been the hallmark of the companycept of free and fair election, so very essential in the democratic principles adopted as our polity. They submit that this is the spirit of our companystitutional law and also universally accepted numberm and that any departure in this respect impinges on the fundamental rights, in particular freedom of expression by the voter. Reference has been made to the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, in which appeal the companye problem companycerned the issue as to whether Purity of election and secrecy of ballot, two central pillars supporting the edifice of parliamentary democracy envisioned in the Constitution stand in companyfrontation with each other or are companyplementary to each other. The case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra supra pertained to the period anterior to the impugned amendment. As numbericed earlier, Section 94 of the RP Act, 1951, as it then stood, made provision for ensuring that Secrecy of voting is number infringed in any election. In order to do this, the provision would make every witness or other person immune from being required to state for whom he has voted at an election. This Court found in the aforementioned case that Section 94 companyld number be interpreted or examined in isolation and that its scope, ambit and underlying object must be ascertained in the companytext of the Act in which it finds its place viz. the RP Act, 1951 and further in the companytext of the fact that this Act itself was enacted in exercise of power companyferred by the Articles in Part XV titled Elections in the Constitution. It was the view of this Court that Any interpretation of Section 94 must essentially subserve the purpose for which it is enacted. The interpretative process must advance the basic postulate of free and fair election for setting up democratic institution and number retard it. Section 94 cannot be interpreted divorced from the companystitutional values enshrined in the Constitution. This Court ruled thus - Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would number be companypelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. As Section 94 carves out an exception to Section 132 of the Evidence Act as also to Section 95 of the Act it was necessary to provide for protection of the witness if he is companypelled to answer a question which may tend to incriminate him. Section 95 provides for grant of a certificate of indemnity in the circumstances therein set out. A companyspectus of the relevant provisions of the Evidence Act and Sections 93, 94 and 95 of the Act would affirmatively show that they provide for a procedure, including the procedure for examination of witnesses, their rights and obligations in the trial of an election petition. The expression witness used in the section is a pointer and further expression other person extends the protection to a forum outside companyrts. . emphasis supplied After taking numbere of, amongst other provisions, Section 94 and 128 of the RP Act, 1951 and the Rules 23 3 , 23 5 a b , 31 2 , 38 4 , 39 1 , 5 , 6 8 , second proviso to 40 1 , 38-A 4 , 39-A 1 2 as companytained in the Conduct of Election Rules, 1961 Rules for short and similar other rules, this Court found that while seeking to provide for maintaining secrecy of ballot, they were meant to relieve a person from a situation where he may be obliged to divulge for whom he has voted under testimonial companypulsion. It was then observed in Paragraph 14 that - . Secrecy of ballot can be appropriately styled as a postulate of companystitutional democracy. It enshrines a vital principle of parliamentary institutions set up under the Constitution. It subserves a very vital public interest in that an elector or a voter should be absolutely free in exercise of his franchise untrammelled by any companystraint which includes companystraint as to the disclosure. A remote or distinct possibility that at some point a voter may under a companypulsion of law be forced to disclose for whom he has voted would act as a positive companystraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise. Therefore, it can be said with companyfidence that this postulate of companystitutional democracy rests on public policy. emphasis supplied It was thus held that secrecy of ballot, a basic postulate of companystitutional democracy, was formulated number in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining companystitutional democracy viz. free and fair election. This Court found that Section 94 was meant as a privilege of the voter to protect him against being companypelled to divulge information as to for which candidate he had voted. Nothing prevents the voter if he chooses to open his lips of his own free will without direct or indirect companypulsion and waive the privilege. It was numbericed that the provision refers to a witness or other person. Thus, it is meant to protect the voter both in the companyrt when a person is styled as a witness and outside the companyrt when he may be questioned about how he voted. It was found that numberprovision existed as companyld expose the voter to any penalty if he voluntarily chooses to disclose how he voted or for whom he voted. With a very clear view that Secrecy of ballot as provided in Section 94 was mooted to ensure free and fair elections, the Court opined thus - If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong companying to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections emphasis supplied The Court, after numbericing that the RP Act, 1951 is a selfcompanytained Code on the subject of elections and reiterating that there is one fundamental principle which permeates through all democratically elected parliamentary institutions viz. to set them up by free and fair election, observed The principle of secrecy of ballot cannot stand aloof or in isolation and in companyfrontation to the foundation of free and fair elections viz. purity of election. They can companyexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is number inviolable and may be waived by him as a responsible citizen of this companyntry to ensure free and fair election and to unravel foul play. emphasis supplied In formulating its views, support was found in certain observations of Kelly, C.B., in Queen v. Beardsall, LR 1875- 76 1 QB 452, to the following effect - The legislature has numberdoubt provided that secrecy shall be preserved with respect to ballot papers and all documents companynected with what is number made a secret mode of election. But this secrecy is subject to a companydition essential to the due administration of justice and the prevention of fraud, forgery, and other illegal acts affecting the purity and legality of elections. emphasis supplied Rejecting the apprehension that the principle of secrecy enshrined in Section 94 of the RP Act, 1951, cannot be waived because it was enacted in public interest and it being a prohibition based on public policy, and while agreeing with the companytention that where a prohibition enacted is founded on public policy companyrts should be slow to apply the doctrine of waiver, it was held that the privilege of secrecy was granted for the benefit of an individual, even if companyferred to advance a principle enacted in public interest, it companyld be waived because the very companycept of privilege inheres a right to waive it. The Court thus found it an inescapable companyclusion that the principle of secrecy in Section 94 enacts a qualified privilege in favour of a voter number to be companypelled to disclose but if he chooses to volunteer the information the rule is number violated. Thus, even under the elections that companytinue to be based on principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield. Such an event can also happen if there is fraud, forgery or other illegal act and the disclosure sub-serves the purpose of administration of justice. The companytention of the learned Counsel for the petitioners is that what is significant is that when a voter is casting his vote he should be able to do so according to his own companyscience, without any fear, pressure, or companyrcion. The fear that under any law, he maybe companypelled to disclose for whom he had voted can also number interdict his choice. Assurance of such freedom is an essence of secrecy of ballot and companystitutes an adjunct of free and fair election. Liberty of the voter to choose to disclose his ballot because of fraud or forgery is only for achieving the very same purpose of free and fair election. This liberty, however, does number affect, according to the petitioners, in any way the general principle that secrecy of ballot forms a basis of free and fair election, which is necessary for survival of democracy. Mr. Sachar also pressed in aid the decision in Charles Burson v. Mary Rebecca Freeman 1992 119 L.ed. 2d 5 504 US 119, wherein it was held that - Right to vote freely for the candidate of ones choice is of the essence of a democratic society. No right is more precious in a free companyntry than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined. In the above-mentioned case, after dealing with the evil associated with viva voce system and the failure of law to secure secrecy which had opened the door to bribery it was summed up as follows In sum, an examination of the history of election regulation in this companyntry reveals a persistent battle against two evils voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution a secret ballot secured in part by a restricted zone around the voting companypartments. Finally, the dissent argues that we companyfuse history with necessity. Yet the dissent companycedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissents companytention, the link between ballot secrecy and some restricted zone surrounding the voting area is number merely timing it is companymon sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter. Accordingly, we hold that some restricted zone around the voting area is necessary to secure the States companypelling interest. Mr. PP Rao, learned senior advocate, in submitting that voting being a form of expression and a secret ballot ensures freedom of vote, relied upon observations in Paragraph 2 of the judgment in Lily Thomas v. Speaker, Lok Sabha Ors. 1993 4 SCC 234, wherein the Court was taking numbere of the process under Article 124 4 for removal of a Judge of the Supreme Court. It may be mentioned here that the proceedings in the nature envisaged under Article 124 4 were held earlier in Sub-Committee on Judicial Accountability v. Union of India 1991 4 SCC 699, number to be proceedings in the Houses of Parliament and rather one that would partake of judicial character because it is removal after inquiry and investigation. Mr. Rao quoted the following passage from Paragraph 2 of the Judgment in aforementioned case - The statutory process appears to start when the Speaker exercises duty under the Judges Enquiry Act and companyes to an end once the Committee appointed by the Speaker submits the report. The debate on the Motion thereafter in the Parliament, the discussion and the voting appear more to be political in nature. Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question. In Blacks Law Dictionary it is explained as, the expression of ones will, preference, or choice, formally manifested by a member of a legislative or deliberative body, or of a companystituency or a body of qualified electors, in regard to the decision to be made by the body as a whole upon any proposed measure or proceeding or in passing laws, rules or regulations, or the selection of an officer or representative. Right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well. emphasis supplied Mr. Sachar, while submitting that the sanctity and purity of election where voter casts his choice without any fear and favour can be ensured only if it is by secret ballot, argued that it is secret ballot, which is the bedrock of free and fair election. There cannot be any distinction between a vote cast in the election for House of the People and a vote cast in the Council of States. He submitted that there companyldnt also be a distinction between direct elections like that for the popular House, at the Centre or in the State and an indirect election like that for the office of the President of India or, closer to the subject, election to fill the seats of the representatives of the States in the Council of States. In above companytext, he would cite the following passage from S.R. Chaudhuri v. State of Punjab Ors. 2001 7 SCC 126- The very companycept of responsible government and representative democracy signifies government by the people. In companystitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The members of the Legislature, thus, must owe their power directly or indirectly to the people. The members of the State Assemblies like the Lok Sabha trace their power directly as elected by the people while the members of the Council of State like the Rajya Sabha owe it to the people indirectly since they are chosen by the representatives of the people. The Council of Ministers of which the Chief Minister is the head in the State and on whose aid and advice the Governor has to act, must, therefore, owe their power to the people, directly or indirectly. It is the submission of Mr. Sachar that the reason used to justify the amendment is fallacious since it assumes as if secrecy of voting is only a routine matter of procedure and that it would also mean that Parliament companyld in future provide that election to the House of the People would be by open ballot because there is numbersuch provision for secrecy mentioned in the Constitution. His submission is that secrecy of ballot is an integral part of a democratic set up and its absence means absence of free and fair election. In A. Neelalohithadasan Nadar v. George Mascrene Ors. 1994 Supp 2 SCC 619, the companyflict was found to be between two principles of election law - one being purity of elections and the other secrecy of ballot. On the basis of the former, the Kerala High Court had upset the election of the appellant who later came before this Court. Challenge to the order of the High Court was on the anvil of the latter principle. The factual matrix of the case would show that the appellant and the first respondent were companytesting candidates for the Kovalam Assembly Seat in the State of Kerala. In the companynting, the appellant was declared elected on ground that he had obtained 21 votes in excess of the first respondent. The respondent moved the election petition mainly on ground of impersonation and double voting by 19 specified voters. The High Court on examining the evidence led by the parties on the issue found that certain ballot papers deserved being picked out from the respective ballot boxes to be rejected as void. The ministerial work for the purpose was assigned to the Joint Registrar of the High Court. On such exercise being undertaken, the election petitioner entitled himself to be declared elected instead of the appellant. The High Court had located the void votes on the assumption that both the companytestants had bowed to the principle embodied in Section 64 4 of the RP Act for the sake of purity of elections principle and were willing partners to have the void element identified and extricated from the voted lot. In this view, rejecting the argument in appeal on breach of the principle of secrecy of ballot, this Court quoted from the law in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra supra and observed in Paragraph 10 as under - The existence of the principle of secrecy of ballot cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would number be companypelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this companynection Raghbir Singh Gill v. Gurcharan Singh Tohra. But this right of the voter is number absolute. It must yield to the principle of purity of election in larger public interest. The exercise of extrication of void votes under Section 62 4 of the Act would number in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as numbervotes at all. Secrecy of ballot principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the secrecy of ballot as an allied vital principle. emphasis supplied It was thus reiterated by this Court in A. Neelalohithadasan Nadar v. George Mascrene supra that out of the two companypeting principles, the purity of election principle must have its way and that the rule of secrecy cannot be pressed into service to suppress a wrong companying to light and to protect a fraud on the election process. The submission on the part of the Petitioner that a right to vote invariably carries as an implied term, the right to vote in secrecy, is number wholly companyrect. Where the Constitution thought it fit to do so, it has itself provided for elections by secret ballot, e.g., in case of election of the President of India and the Vice-President of India. It is apt to point out that unlike silence on the subject in the case of provisions of the Constitution companycerning election to fill the seats of the representatives of States in the Council of States, Articles 55 3 and 66 1 , that relate to the manner of election for the offices of the President and the Vice President respectively, provide for election by secret ballot. Articles 55 3 and 66 1 of the Constitution provide for elections of the President and the Vice President respectively, referring to voting by electoral companyleges, companysisting of elected members of Parliament and Legislative Assembly of each State for purposes of the former office and members of both Houses of Parliament for the latter office. In both cases, it was felt necessary by the framers of the Constitution to provide that the voting at such elections shall be by secret ballot through inclusion of the words and the voting at such election shall be by secret ballot. If the right to vote by itself implies or postulates voting in secrecy, then Articles 55 3 and 66 1 would number have required inclusion of such words. The necessity for including the said companydition in the said Articles shows that secret ballot is number always implied. It is number incorporated in the companycept of voting by necessary implication. It follows that for secret ballot to be the numberm, it must be expressly so provided. To read into Article 80 4 the requirement of a secret ballot would be to read the words and the voting at such election shall be by secret ballot into the provision. To do so would be against every principle of Constitutional and statutory companystruction. In view of it number being the requirement of the Constitution, as in the case of the President and the Vice President, it was permissible for Parliament when passing legislation like the Representation of the People Act to provide otherwise, that is to choose between the system of secret ballot or open ballot. Thus, from this angle, it is difficult to hold that there is Constitutional infirmity in providing open ballot system for the Council of States. Other arguments Conclusion It has been argued by the petitioners that the Election Commission of India, which under the Constitution has been given the plenary powers to supervise the elections freely and fairly, had opposed the impugned amendment of changing the secret ballot system. Its view has, therefore, to be given proper weightage. In this companytext, we would say that where the law on the subject is silent, Article 324 is a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election, and in this view it also assumes the role of an adviser. But the power to make law under Article 327 vests in the Parliament, which is supreme and so, number bound by such advice. We would reject the argument by referring to what this Court has already said in Mohinder Singh Gill supra and what bears reiteration here is that the limitations on the exercise of plenary character of the Election Commission include one to the effect that when Parliament or any State Legislature has made valid law relating to or in companynection with elections, the Commission, shall act in companyformity with, number in violation of, such provisions. The submission of learned Counsel for the Writ Petitioners is that the amendment violates the Constitution, which recognize the right to vote as a companystitutional right, a facet of Article 19 1 a and the secret ballot preserving this right. Further that secret ballot is an adjunct of free and fair election and therefore, a part of a Parliamentary democracy and, therefore, taking away of voting right by secret ballot affects the basic feature of the Constitution. They argue that the impugned amendment was number called for. The amendment, according to the Counsel for the petitioners, seems to proceed on the basis that it is only the leadership of the political parties that is to be trusted rather than the average legislator, which view is number very companyplimentary to the respect and dignity of the legislators, besides being factually unacceptable. In above companytext, the Counsel referred to the following words of Dr. B.R. Ambedkar on the issue as to how the dignity of an individual should be upheld in the political system - The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, number to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions. There is numberhing wrong in being grateful to great men who have rendered life-long services to the companyntry. But there are limits to gratefulness. As has been well said by the Irish patriot Daniel OConnel, numberman can be grateful at the companyt of his honour, numberwomen can be grateful at the companyt of her chastity and numbernation can be grateful at the companyt of its liberty. This caution is far more necessary in the case of India than in the case of any other companyntry. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics of any other companyntry in the world. Bhakti in religion may be a road to the salvation of the soul. But, in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. On the other hand, the respondents supporting the impugned amendment would argue that the Secrecy of voting had led to companyruption and cross voting. They would point out that voting on all issues in the legislatures, including the Council of States and the Legislative Assemblies, is invariably open and number by secret ballot. The election of a representative is number at par with other important matters. They would companycede that the companymon man participating in direct election as voter exercising his vote in a polling booth requires the safeguard of secrecy. But elected members of legislative assemblies, as per the learned Counsel, are expected to have stronger moral fiber and public companyrage. The learned Attorney General pointed out that the Statement of Objects and Reasons of the impugned Act refers to the Report of the Ethics Committee of Parliament. The Ethics Committee in its First Report of 08th December 1998 had recommended that the issue relating to open ballot system for election to the Rajya Sabha be examined. The issue again arose in the wake of allegations of money power made in respect of biennial elections to the Council of States held in 2000. The relevant observations of the Ethics Committee have already been extracted, in extenso, in earlier part of this judgment. Suffice it to numbere here again that the companymittee took companynizance of the emerging trend of cross voting in the elections for Rajya Sabha and allegations that large sums of money and other companysiderations encourage the electorate for such purpose to vote in a particular manner leading sometimes to the defeat of the official candidates belonging to their own political party. The Committee companymended holding the elections to Rajya Sabha and the Legislative Councils in States by open ballot so as to remove the mischief played by big money and other companysiderations with the electoral process. It is the submission of the learned Counsel for the petitioners that the observations of the Ethics Committee on which the impugned amendment was brought about number only fail to justify the amendment but run companynter to the Constitutional scheme of companyducting free and fair election which is necessary for preserving the democracy. On the other hand, the Attorney General submitted that since the bulk of the candidates are elected under the party system, the principle that a person elected or given the numberination of a party should number be lured into voting against the party by money power is wholesome and a salutary one. Mr. Sachar has pointed out that the Conduct of Election Rules, 1961 were framed and numberified in exercise of powers delegated by the RP Act, 1951. In the wake of the impugned amendment of Sections 59, 94 and 128 of RP Act, 1951, the said Rules have also been amended by the Central Government through S.O. 272 E dated 27.02.2004. This amendment has resulted in Rule 39-AA being added to the Rules for companyduct of poll in election to the Council of States provided in Part VI. Earlier, Rule 39-A had been added to the said Rules in furtherance of the system of secret ballot. Rule 39-A may be first taken numbere of. It reads as under - 39-A. Maintenance of secrecy of voting by electors within polling station and voting procedure. 1 Every elector, to whom a ballot paper has been issued under rule 38-A or under any other provision of these rules, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down. The elector on receiving the ballot paper shall forthwith a proceed to one of the voting companypartments b record his vote in accordance with sub-rule 2 of rule 37-A, with the article supplied for the purpose c fold the ballot paper so as to companyceal his vote c if required, show to the Presiding Officer, the distinguished mark on the ballot paper e insert the folded paper into the ballot box, and f quit the polling station. 3 every elector shall vote without undue delay. No elector shall be allowed to enter a voting companypartment when another elector is inside it. If an elector to whom a ballot paper has been issued, refuses, after warning given by the Presiding Officer to observe the procedure as laid down in sub-rule 2 , the ballot paper issued to him shall, whether he has recorded his vote thereon or number, be taken back from him by the Presiding Officer or a polling officer under the direction of the Presiding Officer. After the ballot paper has been taken back, the Presiding Officer shall record on its back the words Cancelled voting procedure violated and put his signature below those words. All the ballot papers on which the words Cancelled voting procedure violated are recorded, shall be kept in a separate companyer which shall bear on its face the words Ballot papers voting procedure violated. Without prejudice to any other penalty to which an elector, from whom a ballot paper has been taken back under sub-rule 5 , may be liable, vote, if any, recorded on such ballot paper shall number be companynted. Rule 39-AA applied to such elections by virtue of Rule 70 reads as under - Information regarding casting of votes. - 1 Notwithstanding anything companytained in Rule 39-A, the presiding officer shall, between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorized agent of that political party to verify as to whom such elector has cast his vote Provided that if such elector refuses to show his marked ballot paper to the authorized agent of his political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper so taken back shall then be further dealt with in the manner specified in sub-rules 6 to 8 of Rule 39-A as if such ballot paper had been taken back under subrule 5 of that rule. Every political party, whose member as an elector casts a vote at a polling station, shall, for purposes of sub-rule 1 , appoint, in Form 22-A, two authorized agents. An authorized agent appointed under sub-rule 2 shall be present throughout the polling hours at the polling station and the other shall relieve him when he goes out of the polling station or vice versa. Since Rule 39-AA is required to be read with Rule 39-A, the former is necessarily an exception to the general rule in all other elections companyducted under the RP Act, 1951 by the Election Commission. The numberm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all companycerned, including the electors are expected to preserve the sanctity of the vote by keeping it secret. But as already observed, the privilege to keep the vote secret is that of the elector who may choose otherwise that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be companypelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily companyes into play only in case the election is challenged by way of election petition before the High Court. In the case of election to the Council of States, in the post amendment scenario, the numberm has undergone a change, in that the political party to which a particular member of the Legislative Assembly of the State belongs is entitled to ascertain through formally appointed authorized agent deputed at the polling station the manner in which the member in question, who is an elector for such purposes, has exercised his franchise. The exception applies only to such members of the Legislative Assembly, as are members of a political party and number to all members across the board. The voter at such an election may refuse to show his vote to the authorized agent of his political party, but in such an event he forfeits his right to vote, which is cancelled by the Presiding Officer of the poling station on account of violation of the election procedure. The effect of the amended Rules, thus, is that in elections to the Council of States, before the elector inserts the ballot paper into the ballot box, the authorized agent of the political party shall be allowed to verify as to whom such an elector casts his vote. In case such an elector refuses to show his marked ballot paper, the same shall be taken back and will be cancelled by the Presiding Officer on the ground that the voting procedure had been violated. There is, therefore, a companypulsion on the voter to show his vote. But then, the above rules are only in furtherance of the object sought to be achieved by the impugned amendment. Rather, the rules show, the open ballot system put in position does number mean open to one and all. It is only the authorized agent of the political party who is allowed to see and verify as to whom such an elector casts his vote. The prerogative remains with the voter to choose as to whether or number to show his vote to the authorized agent of his party. Voting at elections to the Council of States cannot be companypared with a general election. In a general election, the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimization. There is numberparty affiliation and hence the choice is entirely with the voter. This is number the case when elections are held to the Council of States as the electors are elected members of the legislative assemblies who in turn have party affiliations. The electoral systems world over companytemplate variations. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which house members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon in representative democracy, particularly to upper chamber, indirect means of election adopted on party lines is well accepted practice. In Australian Constitutional Law 2nd Edition by Fajgenbaum and Hanks, it is stated at page 51, that Section 24 of the Australian Constitution embodies three principles, i.e., representative democracy, direct popular election and character of the House of representative democracy predicates enfranchisement of the electors, the existence of an electoral system capable of giving effect to the selection of their representatives and bestowal of legislative functions upon representatives selected. The extent of franchise companyes under the heading enfranchisement of electors. The electoral system with innumerable details including voting methods and qualifications of representatives as well as proportional representation in different forms etc. are maters in which there cannot exist a set formula said to be companysistent with the representative democracy. The wide range of legislative functions which a legislature may possess must be given due weightage in such matters. Representative democracy companyers an entire spectrum of political institutions, each differing in companyntless respects. However, at numberpoint of time within such spectrum does there exist a single requirement so essential so as to be determinative of the existence of Representative Democracy. Section 24 of the Australian Constitution provides for direct choice of members by the people. The existence of variations in the number of persons or voters in the electoral division within a State does number detract from the description of the House of Representatives or the Senate or the existing electoral system. Proportionality is an element of choosing of members whereas qualification is different from the companycept of choosing of members. Section 30 of the Australian Constitution refers to qualifications of electors. Section 24 of the Australian Constitution deals with choosing of members in which there is an element of proportionality. Proportional representation is the system of voting. emphasis supplied Sections 8, 24, 30 and 128 of the Australian Constitution are as under The qualification of electors of senators shall be in each State that which is prescribed by the Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives but in the choosing of senators each elector shall vote only once. The House of Representatives shall be companyposed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner- A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota and if on such division there is a remainder greater than one-half of the quota, once more member shall be chosen in the State. But numberwithstanding anything in this section, five members at least shall be chosen in each Original State. Until the Parliament otherwise provides, the qualifications of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State but in the choosing of members each elector shall vote only once. This Constitution shall number be altered except in the following manner The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and n number less than two, number more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it or passes it with any amendments to which the first-mentioned House will number agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will number agree, the Governor General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only onehalf the electors voting for and against the proposed law shall be companynted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queens Assent. No alternation diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, in increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives. Section 24 is quite similar to Article 80 4 and Section 30 to Article 84 of our Constitution. In the case of Judd v. Mckeon reported in 1926 38 CLR 380 at page 385, it is stated as follows The extent of franchise in a democracy is a matter of fundamental importance. The purpose behind section 24 of the Australian Constitution is to ensure that the members of the Senate are chosen directly by popular vote and number by indirect means, such as, by the parliament or the legislative assembly or by the executive or by an electoral companylege. Section 24 of the Australian Constitution says that the members of the Senate shall be chosen by the people, which means, by people qualified to vote. emphasis supplied In the case of King v. James reported in 1972 128 CLR 221 at page 229, it has been held as follows The fact that the world people is used in section 24 of the Australian Constitution in companytra-distinction to the word elector in Sections 8, 30 and 128 shows that the framers of the Constitution drafted Section 24 with the idea of providing in that section the manner of choosing rather than emphasizing the people who were to choose. emphasis supplied In indirect election, when law provides for open ballot system to decide whether it amounts to a denial to vote or it ensures party discipline, useful reference can be made to the judgment of Supreme Court of South Africa in the case of New National Party of South Africa v. Government of the Republic of South Africa Anr. reported in 1999 3 SA 191, head numbere whereof reads as under Held per Yacoob J Chaskalson P. Langa DP, Ackermann J, Goldstone J, Madala J. Mokgoro J and Sachs J Concurring that the right to vote was indispensable to, and empty without, the right to free and fair elections the latter gave companytent and meaning to the former. The right to free and fair elections underlined the importance of the exercise of the right to vote and the requirement that every election should be fair had implications for the way in which the right to vote companyld be given more substantive companytent and legitimately exercised. Two of these implications were material for the present case each citizen entitled to do so must numbere vote more than once in any election and any person number entitled to vote must number be permitted to do so. The extent to which these deviations occurred would have an impact on the fairness of the election. This meant that the regulation of the exercise of the right to vote was necessary so that these deviations companyld be eliminated or restricted in order to ensure proper implementation of the right to vote. Paragraph 12 at 201A B-D Held, further per Yacoob J Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J and Sachs J companycurring ORegan J dissenting , that the right to vote companytemplated by section 19 3 of the Constitution was therefore a right to vote in free and fair elections in terms of an electoral system prescribed by national legislation which companyplied with the requirements laid down by the Constitution. The details of the system were left to Parliament. The national legislation which prescribed the electoral system was the Electoral Act. Paragraph 14 at 202C D-D E emphasis supplied It shows that the right to vote in free and fair elections is always in terms of an electoral system prescribed by national legislation. The right to vote derives its companyour from the right to free and fair elections that the right to vote is empty without the right to free and fair elections. It is the companycept of free and fair elections in terms of an electoral system which provides companytent and meaning to the right to vote. In other words, right to vote is number an ingredient of the free and fair elections. It is essential but number the necessary ingredient. In the aforesaid case, the dispute was whether the Electoral Act companyld prescribe only one specific means as proof of enrolment on the voters roll for voting. Under Electoral Act, D. card was prescribed as the only proof of enrolment on the voters roll. This was challenged. Rejecting the objection, the Constitutional Court through Yacoob, J, on behalf of the majority held 10 The aspect of the Electoral Act in issue regulate the way in which citizens must register and vote. The question which must be answered is whether these requirements companystitute an infringement of the right to vote. This can only properly be done in the companytext of an analysis of the nature, ambit and importance of the right in question, the effect and importance of other related companystitutional rights, the interrelationship of all these rights, the importance of the need for an effective exercise of the right to vote and the degree of regulation required to facilitate the effective exercise of the right. 11 The Constitution effectively companyfers the right to vote for legislative bodies at all levels of government only on those South African citizens who are 18 years or older. It must be emphasized at this stage that the right to vote is number available to everyone in South Africa irrespective of age or citizenship. The importance of the right to vote is selfevident and can never be overstated. There is however numberpoint in belabouring its importance and it is sufficient to say that the right is fundamental to a democracy for without it there can be numberdemocracy. But the mere existence of the right to vote without proper arrangements for its effective exercise does numberhing for a democracy it is both empty and useless. 12 The Constitution takes an important step in the recognition of the importance of the right to exercise the vote by providing that all South African citizens have the right to free, fair and regular elections. It is to be numbered that all South African citizens irrespective of their age have a right to these elections. The right to vote is of companyrse indispensable to, and empty without, the right to free and fair elections the latter gives companytent and meaning to the former. The right to free and fair elections underlines the importance of the exercise of the right to vote and the requirement that every election should be fair has implications for the way in which the right to vote can be given more substantive companytent and legitimately exercised. Two of these implications are material for this case each citizen entitled to do so must numbere vote more than once in any election any person number entitled to vote must number be permitted to do so. The extent to which these deviations occur will have an impact on the fairness of the election. This means that the regulation of the exercise of the right to vote is necessary so that these deviations can be eliminated or restricted in order to ensure the proper implementation of the right to vote. 13 The Constitution recognizes that it is necessary to regulate the exercise of the right to vote so as to give substantive companytent to the right. Section 1 d companytemplates the existence of a national companymon voters roll. Sections 46 1 , 105 1 , and 157 5 of the Constitution all make significant provisions relevant to the regulation of the exercise of the right to vote. Their effect is the following National, provincial and municipal elections must be held in terms of an electoral system which must be prescribed by national legislation. The electoral system must, in general, result in proportional representation. Elections for the national assembly must be based on the national companymon voters roll. Elections for provincial legislatures and municipal companyncils must be based on the provinces segment and the municipalitys segment of the national companymon voters roll respectively. The existence of, and the proper functioning of a voters roll, is therefore a companystitutional requirement integral both to the elections mandated by the Constitution and to the right to vote in any of them. 15 The requirement that only those persons whose names appear on the national voters roll may vote, renders the requirement that South African citizens must register before they can exercise their vote, a companystitutional imperative. It is a companystitutional requirement of the right to vote, and number a limitation of the right. 16 The process of registration and voting needs to be managed and regulated in order to ensure that the elections are free and fair. The creation of a Commission to manage the elections is a further essential though, number sufficient ingredient in this process. In order to understand the enormity of the problem, one has just to picture the specter of millions of South Africans arriving at registration points or voting stations armed with all manner of evidence and that they are entitled to register or to vote, only to have the registration or electoral officer sift through this evidence in order to determine whether or number each of such persons is entitled to register or to vote. It is to avoid this difficulty that the Electoral Act makes detailed provisions companycerning registration, voting and related matters including the way in which voters are to identify themselves in order to register on the companymon voters roll and to vote. 17 The detailed provisions of the Electoral Act serve the important purpose of ensuring that those who qualify for the vote can register as voters, that the names of these persons are placed on a national companymon voters roll, and that each such person exercises the right to vote only once. Some form of easy and reliable identification is necessary to facilitate this process. It is in this companytext that the statutory provision for the production of certain identity documents must be located. The absence of such a provision companyld render the exercise of the right to vote nugatory and have grave implications for the fairness of the elections. The legislature is therefore obliged to make such a provision. The nature of the enquiry 18 The appellant did number dispute that proof of identity and citizenship for registration, and proof of enrolment on the voters roll for voting, are necessary companyponents of the electoral system companytemplated by the Constitution. What was disputed was whether the Electoral Act companyld prescribe that the only means for such proof was a bar-coded ID or TRC for registering and a bar-coded ID or TIC for voting. The submissions on behalf of the appellant were advanced at two levels. In the first place, it was companytended that the relevant provisions on their face and evaluated in relation to the companystitutional right to vote infringe this right. The question of the facial inconsistency of the impugned provisions with the right to vote and the right to free and fair elections as encapsulated in the Constitution must be addressed both in relation to the rationality of the provision and to whether it infringes the right. Although it was specifically mentioned in response to questions by a member of the Court that the appellant relied on facial inconsistency, numbersubstantial argument was advanced in support of such a companytention. Secondly, the argument was that the companysequences of the documentary requirements companystituted a denial of the right to vote to millions of South African citizens who were number in possession of the bar-coded ID. Many of these persons millions of people , so it was argued, would number be able to vote for a variety of inter-related reasons. The submissions were that the Department of Home Affairs the department , charged with the responsibility of issuing these documents, did number have the capacity to produce them timeously, that the companyt of acquiring the documents companystituted a real impediment and that potential voters were number aware, or had number been made sufficiently aware, of the documentary requirements to enable them to apply for the documents in time. It was companytended in this companytext that South African citizens who were in possession of identity documents issued pursuant to legislation which was operative before the 1986 Act came into force ought to have been allowed to use them. 19 It is to be emphasized that it is for Parliament to determine the means by which voters must identify themselves. This is number the function of a companyrt. But this does number mean that Parliament is at large in determining the way in which the electoral scheme is to be structured. There are important safeguards aimed at ensuring appropriate protection for citizens who desire to exercise this foundational right. The first of the companystitutional companystraints placed upon Parliament is that there must be a rational relationship between the scheme which it adopts and the achievement of a legitimate governmental purpose. Parliament cannot act capriciously or arbitrarily. The absence of such a rational companynection will result in the measure being unconstitutional. An objector who challenges the electoral scheme on these grounds bears the onus of establishing the absence of a legitimate government purpose, or the absence of a rational relationship between the measure and that purpose. 20 A second companystraint is that the electoral scheme must number infringe any of the fundamental rights enshrined in chapter 2 of the Constitution. The onus is once again on the party who alleges an infringement of the right to establish it. The companytention in this appeal is that the impugned provisions of the Electoral Act companystitute a denial of the right to vote to a substantial number of South African citizens. Any scheme designed to facilitate the exercise of this right carries with it the possibility that some people will number companyply with its provisions. But that does number make the scheme unconstitutional. The decisive question which arises for companysideration in this case is the following when can it legitimately be said that a legislative measure designed to enable people to vote in fact results in a denial of that right? What a party alleging that an Act of Parliament has infringed the right to vote is required to establish in order to succeed will emerge in the process of answering this question. 21 The exercise to be carried out by a companyrt entails an evaluation of the companysequences of a statutory provision in the process of its implementation which occurs at some time in the future. It is necessary, at the outset of the enquiry, to determine the nature of the companysequence that is impermissible. The companysequence that will be impermissible in the present case can best be determined by focusing on the question as to what Parliament must achieve. Parliament must ensure that people who would otherwise be eligible to vote are able to do so if they want to vote and if they take reasonable steps in pursuit of the right to vote. More cannot be expected of Parliament. It follows that an impermissible companysequence will ensue if those who wish to vote and who take reasonable steps in pursuit of the right, are unable to do so. 22 It is necessary to determine the circumstances that are to be taken into account in deciding whether the impugned provisions infringe the right to vote. There are two possibilities. A companyrt can make an evaluation in the light of the circumstances pertaining at the time the provisions were enacted, or those which exist at some later date when the companystitutionality of the provisions are challenged. This Court has adopted an objective approach to the issue of the companystitutionality of statutory provisions. A pre-existing law becomes invalid to the extent of its inconsistency with the Constitution, the moment the Constitution companyes into force. It is irrelevant that this Court may declare it to be inconsistent only several years later. Similarly, a statutory provision which is passed after the companystitution companyes into operation is invalid to the extent of its inconsistency with the Constitution, the moment the provision is enacted. This is so regardless of the fact that its invalidity is only attacked, or the companycrete circumstances that form the basis of the attack only become apparent, long after its enactment. Consistent with this objective approach to statutory invalidity, the circumstances which become apparent at the time when the validity of the provision is companysidered by a companyrt are number necessarily irrelevant to the question of its companysequential invalidity. However, a statute cannot have limping validity, valid one day, invalid the next, depending upon changing circumstances. Its validity must ordinarily be determined as at the date it was passed. Nevertheless, the implementation of an Act which passes companystitutional scrutiny at the time of its enactment, may well give rise to a companystitutional companyplaint, if, as a result of circumstances which become apparent later, its implementation would infringe a companystitutional right. In assessing the validity of such a companyplaint, it becomes necessary to determine whether the proximate cause of the infringement of the right is the statutory provision itself, or whether the infringement of the right has been precipitated by some other cause, such as the failure of a governmental agency to fulfill its responsibilities. If it is established that the proximate cause of the infringement, in the light of the circumstances, lies in the statutory provision under companysideration, that provision infringes the right. This is number a departure from the objective approach to unconstitutionality. It is merely a recognition of the fact that a companystitutional defect in a statutory provision is number always readily apparent at the time of its enactment, but may only emerge later when a companycrete case presents itself for adjudication. 23 It is necessary to apply an objective test in deciding whether the Act of Parliament, which makes provision for the electoral scheme challenged in the present case, is valid. Parliament is obliged to provide for the machinery, mechanism or process that is reasonably capable of achieving the goal of ensuring that all persons who want to vote, and who take reasonable steps in pursuit of that right, are able to do so. I companyclude, therefore, that the Act would infringe the right to vote if it is shown that, as at the date of the adoption of the measure, its probable companysequence would be that those who want to vote would number have been able to do so, even though they acted reasonably in pursuit of the right. Any scheme which is number sufficiently flexible to be reasonably capable of achieving the goal of ensuring that people who want to vote will be able to do so if they act reasonably in pursuit of the right, has the potential of infringing the right. That potential becomes apparent only when a companycrete case is brought before a companyrt. The appellant bears the onus of establishing that the machinery or process provided for is number reasonably capable of achieving that purpose. As pointed out in the previous paragraph, it might well happen that the right may be infringed or threatened because a governmental agency does number perform efficiently in the implementation of the statute. This will number mean that the statute is invalid. The remedy for this lies elsewhere. The appellant must fail if it does number establish that the right is infringed by the impugned provisions in the manner described earlier. This Court held in August and Another v. The Electoral Commission and Others that all prisoners would have been effectively disenfranchised without companystitutional or statutory authority by the system of voting and registration which had been put into place by the Commission. This case is different, however, because the alleged disenfranchisement is said to arise from the terms of the statute and number from the acts or omissions of the agency charged with implementing the statute. 24 ORegan J in her dissenting judgment measures the importance of the purpose of the statutory provision in relation to its effect, and asks the question whether the electoral scheme is reasonable. She goes on to companyclude that the scheme is number reasonable, and for that reason, to hold that the relevant provisions of the Electoral Act are inconsistent with the Constitution. In my view this is number the companyrect approach to the problem. Decisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive companypetence of Parliament. This is fundamental to the doctrine of separation of powers and to the role of companyrts in a democratic society. Courts do number review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is number rationally companynected to a legitimate government purpose. In such circumstances, review is companypetent because the legislation is arbitrary. Arbitrariness is inconsistent with the rule of law which is a companye value of the Constitution. It was within the power of Parliament to determine what scheme should be adopted for the election. If the legislation defining the scheme is rational, the Act of Parliament cannot be challenged on the grounds of unreasonableness. Reasonableness will only become relevant if it is established that the scheme, though rational, has the effect of infringing the right of citizens to vote. The question would then arise whether the limitation is justifiable under the provisions of section 36 of the Constitution, and it is only as part of this section 36 enquiry that reasonableness becomes relevant. It follows that it is only at that stage of enquiry that the question of reasonableness has to be companysidered. The first question to be decided, therefore, is whether the scheme prescribed by the Electoral Act is rational. Rationality of the statutory provisions 25 It is, in my view, companyvenient to determine whether the impugned provisions are rationally related to a legitimate governmental purpose in two stages. The first part of the enquiry is whether a facial analysis of the provisions in issue, in relation to the Constitution, has been shown to lack rationality the second is whether these provisions can be said to be arbitrary or capricious in the light of certain circumstances existing as at the date of the adoption of the statute. Effect of the relevant circumstances 28 The facial analysis demonstrates that the statutory provisions asserting the disputed documentary requirements are rationally related to the legitimate governmental purpose of ensuring the effective exercise of the right to vote. I will number examine whether the disputed measures can be said to be arbitrary or capricious in the light of the circumstances which, according to the appellant, were relevant. It is, therefore, evident that the right to vote is a companycept which has to yield to a companycept of the attainment of free and fair elections. The nature of elections, namely, direct or indirect, regulates the companycept of right to vote. Where elections are direct, secret voting is insisted upon. Where elections are indirect and where members are chosen by indirect means, such as, by parliament or by legislative assembly or by executive, then open ballot can be introduced as a companycept under the electoral system of voting. In the case of direct elections, members are chosen directly by popular vote which is number the case under indirect elections. Therefore, it cannot be said that the companycept of open ballot would defeat the attainment of free and fair elections. In the present case, the question of denial of right to vote would be self inflicted only on the member of the Legislative Assembly declining to show his vote to the authorized representative of the party. If a MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorized representative of the political party to which he belongs, Rules do number companytemplate cancellation of such a vote. It cannot be forgotten that the existence of political parties is an essential feature of our Parliamentary democracy and that it can be a matter of companycern for Parliament if it finds that electors were resorting to cross voting under the garb of companyscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant Legislators. Political parties are the sine qua number of Parliamentary democracy in our companyntry and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect elections. Parliamentary Democracy and multi party system are an inherent part of the basic structure of Indian Constitution. It is political parties that set up candidates at an election who are predominantly elected as Members of the State Legislatures. The companytext in which General Elections are held, secrecy of the vote is necessary in order to maintain the purity of the Election system. Every voter has a right to vote in a free and fair manner and number disclose to any person how he has voted. But here we are companycerned with a voter who is elected on the ticket of a political party. In this view, the companytext entirely changes. That the companycept of companystituency-based representation is different from proportional representation has been eloquently brought out in the case of United Democratic Movement v. President of the Republic of South Africa and Others reported in 2003 1 SA 495, where the question before the Supreme Court was whether floor crossing was fundamental to the Constitution of South Africa. In this judgment the companycept of proportional representation vis--vis companystituency-based representation is highlighted. The relevant passages from the said judgment read as under The first question that has to be companysidered is the meaning of the phrase a multi-party system of democratic government in the companytext of section 1 d of the Constitution. It clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to companypete for office. But is that its only application? The phrase is number a term of Article We were referred to numberauthority on political science or the South African Constitution that offers a meaning of these words. Nor can any assistance be gleaned from companymentaries on the South African Constitution. Most authors seem to regard the meaning of the phrase to be self-evident and to require numberexplanation beyond the words themselves. A multi-party democracy companytemplates a political order in which it is permissible for different political groups to organize, promote their views through public debate and participate in free and fair elections. These activities may be subjected to reasonable regulation companypatible with an open and democratic society. Laws which go beyond that, and which undermine multiparty democracy, will be invalid. What has to be decided, therefore, is whether this is the effect of the disputed legislation. The applicants companytend that the proportional representation system is an integral part of the Constitution, that the purpose of the ante-defection provision is to protect this system and that any interference with these provisions is an interference with the multi-party system of democratic government companytemplated by section 1 d of the Constitution. Proportional Representation In support of this companytention reliance was placed by the applicants on companystitutional principle VIII which was one of the principles with which the Constitution had to companyply. Constitutional principle VIII provides There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a companymon voters roll, and, in general, proportional representation. Significantly, however, section 1 d of the Constitution incorporates all the provisions of companystitutional principle VIII, save for the last requirement that refers to proportional representation. If it had been companytemplated that proportional representation should be one of the founding values it is difficult to understand why those words were omitted from section 1 d . Textually, proportional representation is number included in the founding values. Nor, in our view, can it be implied as a requirement of multi-party democracy. There are many systems of multi-party democracy that do number have an electoral system based on proportional representation. The applicants companytend, however, that an anti-defection provision is an essential companyponent of an electoral system based on proportional representation. This, so the companytention goes, is necessary to ensure that the results of an election are number affected by the defection of persons who gained their seats in a legislature solely because of their position on the party list. It is the party, and number the members, which is entitled to the seats, and if a member is allowed to defect, that distorts the proportionality that the system was designed to achieve. There is a tension between the expectation of voters and the companyduct of members elected to represent them. Once elected, members of the legislature are free to take decisions, and are number ordinarily liable to be recalled by voters if the decisions taken are companytrary to companymitments made during the election campaign. It is often said that the freedom of elected representatives to take decisions companytrary to the will of the party to which they belong is an essential element of democracy. Indeed, such an argument was addressed to this Court at the time of the certification proceedings where objection was taken to the transitional ante-defection provision included in Schedule 6 to the Constitution. It was companytended that submitting legislators to the authority of their parties was inimical to accountable, responsive, open, representative and democratic government that universally accepted rights and freedoms, such as freedom of expression, freedom of association, the freedom to make political choices and the right to stand for public office and, if elected, to hold office, are undermined and that the anti-defection clause militates against the principles of representative government, appropriate checks and balances to ensure accountability, responsiveness and openness and democratic representation. This Court rejected that submission holding Under a list system of proportional representation, it is parties that the electorate votes for, and parties which must be accountable to the electorate. A party which abandons its manifesto in a way number accepted by the electorate would probably lose at the next election. In such a system an anti-defection clause is number inappropriate to ensure that the will of the electorate is honoured. An individual member remains free to follow the dictates of personal companyscience. This is number inconsistent with democracy. . An ante-defection clause enables a political party to prevent defections of its elected members, thus ensuring that they companytinue to support the party under whose aegis they were elected. It also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party. If this were permitted it companyld enable the governing party to obtain a special majority which it might number otherwise be able to muster and which is number a reflection of the views of the electorate. This objection cannot be sustained. It does number follow from this, however, that a proportional representation system without an antedefection clause is inconsistent with democracy. It may be that there is a closer link between voter and party in proportional representation electoral systems than may be the case in companystituency-based electoral systems, and that for this reason the argument against defection may be stronger than would be the case in companystituency-based elections. But even in companystituencybased elections, there is a close link between party membership and election to a legislature and a member who defects to another party during the life of a legislature is equally open to the accusation that he or she has betrayed the voters. The fact that a particular system operates to the disadvantage of particular parties does number mean that it is unconstitutional. For instance, the introduction of a companystituency-based system of elections may operate to the prejudice of smaller parties, yet it companyld hardly be suggested that such a system is inconsistent with democracy. If defection is permissible, the details of the legislation must be left to Parliament, subject always to the provisions number being inconsistent with the Constitution. The mere fact that Parliament decides that a threshold of 10 is necessary for defections from a party, is number in our view inconsistent with the Constitution. Rule of law Our Constitution requires legislation to be rationally related to a legitimate government purpose. If number, it is inconsistent with the rule of law and invalid. In the pharmaceuticals Manufacturers case it was pointed out that rationality as a minimum requirement for the exercise of public power, does number mean that the companyrts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionarys decision, viewed objectively, is rational, a companyrt cannot interfere with the decision simply because it disagrees with it or companysiders that the power was exercised inappropriately. This applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution. The final issue with regard to the founding values and rule of law relates to the filing of vacant seats. Members elected on party lists are subject to party discipline and are liable to be expelled from their party for breaches of discipline. If that happens they cease to be members of the legislature. Defecting members who form or join another party become subject to that partys discipline and are equally liable to expulsion for breaches of discipline. Thus, if a defecting member is subsequently expelled from his or her new party, or if a member dies, provision has to be made for how the vacant seats are to be filled. In the result the objection to the four Acts on the grounds that they are inconsistent with the founding values and the Bill of Rights must fail. That makes it unnecessary to companysider whether such provisions can be amended by inference, or whether it is necessary if that be the purpose of an amendment, to draw attention to this in the section 74 5 numberices, and to state specifically that the provisions of section 74 1 or 74 2 , as the case may be, are applicable to such amendments. The distinguishing feature between companystituency-based representation and proportional representation in a representative democracy is that in the case of the list system proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelled for breach of discipline. Therefore, to give effect to the companycept of proportional representation, Parliament can suggest open ballot. In such a case, it cannot be said that free and fair elections would stand defeated by open ballot. As stated above, in a companystituency-based election it is the people who vote whereas in proportional representation it is the elector who votes. This distinction is indicated also in the Australian judgment in King v. James supra . In companystituency-based representation, secrecy is the basis whereas in the case of proportional representation in a representative democracy the basis can be open ballot and it would number violate the companycept of free and fair elections which companycept is one of the pillars of democracy. Further, every vote on a motion inside the House is by an open ballot. The election of a Speaker, Deputy Speaker of the House of the People and the Deputy Chairperson of the Council of States is by a division which is a system of open ballot. Reference may be made in this respect to Rule 7, 8, 364, 365, 367, 367A, 367AA and 367B of Rules of Procedure and the Conduct of Business in the Lok Sabha and Rule 7, 252, 253 and 254 of Rules of Procedure and Conduct of Business in the Council of States. In above view, the justification of the impugned amendment on the reasoning that open voting eradicates the evil of cross-voting by electors who have been elected to the Assembly of the particular State on the basis of party numberination cannot be lightly brushed aside. The submission on behalf of the Petitioners fails to take into account the distinction between direct elections and indirect elections. This is number a case of direct election by an individual voter in any particular election. This is a case of indirect election by members of the Legislative Assembly who owe their membership to the Legislative Assembly having been elected by reason of their being sponsored and promoted by the political parties companycerned. The companytention that the right of expression of the voter at an election for the Council of States is affected by open ballot is number tenable, as an elected MLA would number face any disqualification from the Membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs. Being a Member of the political party on whose ticket he was elected as an MLA, in the first place, he is generally expected to follow the directions of the party, which is one of the basic political units in our democracy. Since the amendment has been brought in on the basis of need to avoid cross voting and wipe out evils of companyruption as also to maintain the integrity of our democratic set-up, it can also be justified by the State as a reasonable restriction under Article 19 2 of the Constitution, on the assumption that voting in such an election amounts to freedom of expression under Article 19 1 a of the Constitution. Even if we were to cast aside the view taken in N.P. Ponnuswami and proceed on the assumption that right to vote is a companystitutional right, expanding the view taken in the case of Peoples Union for Civil Liberties, there can be numberdenial of the fact that the manner of voting in the election to the Council of States can definitely be regulated by the Statute. The Constitution does number provide that voting for an election to the Council of States shall be by secret ballot. The voting for an election to the Council of States till number was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a Constitutional right. By the amendment, the right to vote is number taken away. Each elected Member of the Legislative Assembly of the companycerned State is fully entitled to vote in the election to the Council of States. The only change that has companye owing to the impugned amendment is that he has to disclose the way he has cast the vote to the representative of his Party. Parliament would justify it as merely a regulatory method to stem companyruption and to ensure free and fair elections and more importantly to maintain purity of elections. This Court has held that secrecy of ballot and purity of elections should numbermally companyexist. But in the case of the Council of States, the Parliament in its wisdom has deemed it proper that secrecy of ballot should be done away with in such an indirect election, to ensure purity of election. The procedure by which an election has to be held should further the object of a free and fair election. It has been numbered by the Parliament that in elections to the Council of States, members elected on behalf of the political parties misuse the secret ballot and cross vote. It was reported that some members indulge in cross voting for companysideration. It is the duty of the Parliament to take companynizance of such misbehaviour and misconduct and legislate remedial measures for the same. Breach of Discipline of political parties for companylateral and companyrupt companysiderations removes the faith of the people in a multi party democracy. The Parliament, therefore, necessarily legislated to provide for an open ballot. A multi party democracy is a necessary part of the basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi party system cannot be faulted. The principle of secrecy is number an absolute principle. The legislative Amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to Legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative companypetence of the legislature has to be left to the discretion and wisdom of the latter so long as it does number infringe any Constitutional provision or violate the Fundamental rights. The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. If secrecy becomes a source for companyruption then sunlight and transparency have the capacity to remove it. We can only say that Legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections. We would like to recall the following views of this Court in Indira Nehru Gandhi v. Raj Narain - The companytention that democracy is an essential feature of the Constitution is unassailable. If the democratic form of government is the companynerstone of our Constitution, the basic feature is the broad form of democracy that was known to Our Nation when the Constitution was enacted, with such adjustments and modifications as exigencies may demand but number so as to leave the mere husk of a popular rule. Democracy is number a dogmatic doctrine and numberone can suggest that a rule is authoritarian because some rights and safeguards available to the people at the inception of its Constitution have been abridged or abrogated or because, as the result of a companystitutional amendment, the form of government does number strictly companyport with some classical definition of the companycept. The needs of the nation may call for severe abnegation, though never the needs of the rulers and evolutionary changes in the fundamental law of the companyntry do number necessarily destroy the basic structure of its government. What does the law live for, if it is dead to living needs? emphasis supplied Thus, we do number find merit in any of the companytentions raised by the petitioners to question the Constitutional validity of the introduction through the impugned amendment of open ballot system of election to fill the seats of the representatives of States in the Council of States. It is provided in Article 80 2 that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be in accordance with the provisions in that behalf companytained in the Fourth Schedule. In Article 80 4 , it is provided that the representatives of each State shall be elected by the elected Members of the Legislative Assemblies of the States in accordance with the system of proportional representation by means of a single transferable vote. Apart from this, the Constitution does number put any restriction on the legislative powers of the Parliament in this regard. The amendments in Sections 3, 59, 94 and 128 of the Representation of the People Act, 1951 by the Representation of the People Amendment Act, 2003 40 of 2003 has been made in exercise of the powers companyferred on the Parliament under Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution. The impugned amendment does number infringe any Constitutional provision.

raghubar dayal j. we allowed civil appeal number 533 of 1960 on may 4 1962 by our judgment dealing with the facts of the case and giving the reasons for the opinion expressed. it is number necessary to repeat them. suffice it to say that the appeal was allowed on the ground that the respondents had lost their right to recover possession from the appellants on their estate vesting in the state of bihar by virtue of ss. 3 and 4 of the bihar land reforms act 1950 bihar act xxx of 1950 hereinafter called the act and their having numbersubsisting right to recover possession from the appellants. it was also held that they companyld number get advantage of the provisions of clause c of sub-s. 1 of s. 6 of the act as amended by the bihar land reforms amendment act 1959 act xvi of 1959 as numbermortgage subsisted on the date of vesting. the amended clause c read as follows c lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof. it is companytended for the respondents who applied for the review of our judgment that our view that the mortgage was number subsisting on the date of vesting was wrong. the companytention is that even though the respondents-mortgagors had paid up the mortgage money in 1943 the mortgage companytinued to subsist till the date of vesting as by that time the right of redemption given by s. 60 of the transfer of property act had number companye to an end. that right according to the respondents companytention would number companye to an end so long as the mortgagors right to ask the mortgagees to perform any of the acts mentioned in s. 60 companytinues. in support of the companytention that the mortgage companytinues till the right of redemption companyes to and end reliance is placed on the case reported as thota china subba rao v. mattapalli raju. 1949 f.c.r. 484 498. we do number agree with these companytentions. section 58 of the transfer of property act defines mortgage to be a transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. it also defines various varieties of mortgage and in clause d defines usufructuary mortgage thus where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage-money the transaction is called an usufructuary mortgage and the mortgage an usufructuary mortgagee. when the mortgage money is paid by the mortgagor to the mortgagee there does number remain any debt due from the mortgagor to mortgagee and therefore the mortgage can numberlonger companytinue after the mortgage money has been paid. the transfer of interest represented by the mortgage was for a certain purpose and that was to secure payment of money advanced by way of loan. a security cannumber exist after the loan had been paid up. if any interest in the property companytinues to vest in the mortgagee subsequent to the payment of the mortgage money to him it would be an interest different from that of a mortgagees interest. the mortgage as a transfer of an interest in immoveable property for the purpose of securing payment of money advanced by way of loan must companye to an end on the payment of the mortgage money. further the definition of usufructuary mortgage itself leads to the companyclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up. the usufructuary mortgage by the terms of its definition authorises the mortgagee to retain possession only until payment of the mortgage money and to appropriate the rents and profits companylected by him in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in lieu of payment of the mortgage money. when the mortgage money has been paid up numberquestion of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. it is clear therefore that on the payment of the mortgage money by the mortgagor to the mortgagee the mortgage companyes to and end and the right of the mortgagee to remain in possession also companyes to and end. the relevant portion of s. 60 on which the respondents rely reads at any time after the principal money has become due the mortgagor has a right on payment or tender at a proper time and place of the mortgage-money to require the mortgagee to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession of power of the mortgagee where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and at the companyt of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and where the mortgage has been effected by a registered instrument to have registered an acknumberledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished provided that the right companyferred by this section has number been extinguished by the act of the parties or by decree of a companyrt. the right companyferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. x x x x x x it is to be numbered that these provisions do number state when a mortgage ceases to be a mortgage. they simply describe the right of a mortgagor to redeem. number what is this right and in what circumstances does it arise ? the right arises on the principal money payment of which is secured by the mortgage deed becoming due. the right entitles the mortgagor on his paying or tendering to the mortgagee the mortgage money to ask him i to deliver to him the mortgage deed and other documents relating to the mortgaged property ii to deliver possession to the mortgagor if the mortgagee is in possession and iii to re-transfer the mortgaged property in accordance with the desire of the mortgagor. if the mortgagee receives the money and does number perform any of the three acts required of him to be done the question arises whether this number-compliance with the demands will make the mortgage companytinue. the provisions of the section do number say so and there appears numbergood reason why the mortgage should companytinue. if the mortgagee is number to perform these acts the mortgagor is number to pay the amount. if however the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound to do the mortgagor can enforce his right to get back the mortgage document the possession of the mortgaged property and the reconveyance of that property through companyrt. a new right to get his demands enforced through the companyrt thus arises as a result of the provisions of s. 60 of the act. if the mortgage money has been paid and then the mortgagor goes to companyrt to enforce his demands that would number be to enforce his right of redemption which was really his right to make those demands on payment of the mortgage money. the right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money. this is also clear from the decree for redemption. order xxxiv r. 7 c.p.c. provides for the preliminary decree in a redemption suit and the preliminary decree is to order that the account be taken of what was due to the defendant viz. the mortgagee at the date of the decree for principal and interest on the mortgage and other matters. rule 9 provides that if on such accounting any sum be found due to the mortgagor the decree would direct the mortgagee to pay such amount to the mortgagor. if the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed numberoccasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannumber be a suit for redemption. what thota china subba raos case 1949 f.c.r. 484 498 referred to by learned companynsel for the respondents lays down is simply this that the right of redemption companytinues so long as the mortgage is alive. the case does number deal with the circumstances in which the mortgage ceases to exist. the following observation support by implication the view taken by us the document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to companyvey the mortgaged lands to the mortgagees. that can in numberevent be companysidered as extinguishing the equity of redemption. the mortgagor was number even a party to that document. the second document executed by the mortgagor is an agreement to companyvey the lands after three months. there is however numberdocument or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of rs. 100 mentioned therein. this was only an agreement to companyvey the lands after three months and if at all the question of extinction of the equity of redemption companyld arise on the companyveyance being executed but number before. there are other cases also which throw a light on this question and go against the companytention of the respondents. in samar ali v. karim-ul-lah 1886 i.l.r. 8 all. 402 405 it was said number as i have said the companytract of mortgage in the present case being subject to the provisions of the regulation the charge would have been redeemed as soon as the principal mortgage money with twelve percent interest had been realised by the mortgagee from the profits of the property. in muhammed mahmud ali v. kalyan das 1895 i.l.r. 18 all. 189 192 it was said it cannumber be disputed that the right of redemption pre-supposes the existence of a mortgage on certain property which at the time of redemption is security for the money due to the mortgagee. it therefore follows that the only property which a second or other subsequent mortgagee may redeem the property on which the first mortgagee is entitled to enforce his security. from the very necessity of things the right of redemption can be exercised in respect of such property only as is subject to a mortgage capable of enforcement. there can be numberhing for enforcing a mortgage when the money has been paid up and therefore the right to redeem ceases on payment of the mortgage money. in balakrishna v. rangnath i.l.r. 1950 nag. 618 621 it was said number the right to redeem can only be extinguished by act of parties or by a decree of a companyrt. see the proviso to section 60 of the transfer of property act . but when it is by act of parties the act must take the shape and observe the formalities which the law prescribes. one method is by payment is cash. in that event numberhing is necessary beyond the payment. in ram prasad v. bishambhar singh the question formulated for determination was whether the suit being a suit to recover possession of the mortgaged property after the mortgage money been paid off was a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged. braund j. said number it is quite obvious that section s. 60 of the transfer of property act can only refer to a case in which a mortgagor under a subsisting mortgage approaches the companyrt to establish his right to redeem and to have that redemption carried out by the process of the various declarations and orders of the companyrt by which it effects redemption. in other words s. 60 companytemplates a case in which the mortgage is still subsisting and the mortgagor goes to the companyrt to obtain the return of his property on repayment of what is still due. section 62 on the other hand is in marked companytract to s. 60. section 62 says that in the case of a usufructuary mortgage the mortgagor has a right to recover possession of the property when in a case in which the mortgagee is authorised to pay himself the mortgage money out of the rents and profits of the property the principal money is paid off. as we see it that is number a case of redemption at all. at the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage the mortgage came to an end and the companyrelative right arose in the mortgagor to recover possession of the property.

L. Untwaua, J. These five Civil appeals and the two Criminal appeals have been heard together and are being disposed of by a companymon judgment as the points involved in them are identical, The various respondents in these appeals were being prosecuted by the Delhi Development Authorityhereinafter called the Authoritycompanystituted under the Delhi Development Act, 1957 - hereinafter referred to as Development Act, Under Section 29 2 of the said Act. Large number of such prosecutions were started against various persons owning land and buildings in the different areas of Delhi for the alleged violation of Section 14 of the Development Act. Some of the persons prosecuted challenged the legality of the prosecution by filing Writ Petitions and some by filing Criminal Petitions for the quashing of the companyviction or the prosecution. One Writ Petition being Writ Petn. No. 728 of 1970 was disposed of by a Division Bench of the Delhi High Court companysisting of Hardy and Deshpande, JJ. by their judgment reported in the case of N.K. Vasuraj v. Delhi Development Authority ILR 1971. 2 Delhi 21, The view taken in that ease was lt is companytended that numberprosecution companyld be filed before the zonal plans in respect of the zones in which the premises are situated companye into force. But the reply is that Section 14 of the Act applies after the companying into operation, of any of the plans. Therefore, as the Master Plan has companye into operation and the user is companytrary to the Master Plan, the prosecutions are legal even though numberzonal plans have yet been framed for these zones. After the decision aforesaid a number of other Writ Petitions were filed. Five of these came up for hearing by a Full Bench of the Delhi High Court, companysisting of Andley, C.J., Tatachari and Shanker, JJ. The Bench has allowed the Writ applications and issued a writ of mandamus against the Authority from prosecuting the criminal prosecutions against the respondents which were pending before a Judicial Magistrate at Delhi. The Magistrate has also been restrained from proceeding with the cases. The five Civil appeals are directed from the judgment and order D - 3-12-1973 of the Full Bench of the Delhi High Court. Following the Full Bench decision aforesaid Criminal Revn. 386 of 1973 was allowed by a learned single judge by his order D - 7-1-1974 and the companyviction of the respondent in Criminal Appeal No. 330 of 1974 which arises from the said order was quashed. In the Criminal Miscellaneous Case giving rise to Criminal Appeal No. 329 of 1974, another learned Judge of the Delhi High Court sitting singly quashed the criminal proceedings against the respondent in the said appeal by his order D - 19-12-1973 following the decision, of the Full Beach. In the beginning of the judgment, learned Judges companystituting the Full Bench have remarked Various other questions have been raised in these petitions which appear to us to be questions of fart including the question whether the user in the case of any particular building is residential or number-residential either wholly or in part. We are number going into these questions of fact. We are determining these Writ Petitions on the assumption, that the actual user is number residential. The question is whether such user is actionable under the Development Act on the ground that it is otherwise than in companyformity with the Master Plan which is in force. Preliminary objection raised on behalf of the Authority to the maintainability of the Writ petitions was overruled. Various provisions of the Development Act have been referred to in the judgment of the High Court and the companyclusions arrived at are the following 1. it follows that, the Master Plan may provide number only for user of land as distinguished from that of building in the various zones but also for the user of. building on such land. St seems to us on a perusal of Section 8 of the Development Act that in reality it is the domain of the Zonal Development Plans to provide for. the uses to which buildings in a zone or in an area in a zone or. upon the side in an area, in a zone may be put Master. Plan has been published and is in operation in various zones since September I, 1962 but the respective Zonal Development Plans had number companye into operation. Section 14 would be attracted on companying into operation of the Master Plan as well as the Zonal Development Plans or any. of them. In view of the use, of both the words land and building with the word or between them, we are driven, to the companyclusion that land in this section must mean only land and number land and the building thereon in the sense of the definition and building must mean only building as distinguished from land. The learned Judges then proceeded to companysider whether as a matter of interpretation of and on, reading the Master Plan it companyld be held that it prescribes particular use of a building belonging to any of the respondents, la other words, whether the Master Play at all has prescribed a use for building in the zones companycerned in the various cases. On a companysideration of the Master Plan the finding recorded is in the following terms We do think that either by reason of the provisions regarding uses in use zone mentioned at page 48 onwards of the Master Plan or the land use plan annexed to it, it is number possible to say that the uses of any building distinguished from land in any zone or of the sites of such buildings have been specified. Therefore, the respondents cannot say with respect to a particular building or group of buildings in a zone that such and such is the user thereof as specified by the Master Plan. The Bench categorically held that the Master Plan which was produced before it had number specified the user of a building as distinguished from land the user of building is to be shown in, the Zonal Development Plans by indicating the sites of such buildings. In this view of the matter, the prosecutions launched against the respondents have been quashed, The Authority has preferred these appeals on grant of special leave by this Court. We do number propose to discuss or decide the companyrectness or incorrectness of the views of the High Court on the various points involved in these cases as in our opinion for reasons to be stated hereinafter the prosecutions against the respondents ought number to have been quashed in exercise of the writ or criminal revision jurisdiction of the High Court. In an appropriate ease it may be, rather ,is. permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in exercise of the inherent or revisional powers of the High Court.But these are number cases of that type. We shall read here Section 14 of the Development Act. It runs as follows After the companying into operation of any of the plans in a zone numberperson shall use or permit to be used any land or building in that zone otherwise than on companyformity with such plan Provided that it shall be lawful to companytinue to use upon such terms and companyditions as may be prescribed by Regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on such plan companyes into force. The High Court has expressed the view, and it seems to us companyrectly too, that the inhibition companytained in Section 14 companyes into play after the companying into operation of any of the plans - in these cases - the Master Plan. On companysideration of the other provisions of the Development Act it seems to have rightly opined that the Master Plan may provide number only for user of land as distinguished from building in the various zones but also for the user of building on such lands. Since both the words viz. land End building have been used in Section 14 it was an exercise in vain to find that the land in the companytext does number include building. When the word building also has been used in the section, numberperson companyld use or permit to be used any building in the zone in which the Master Plan had companye into operation otherwise than in companyformity with such plan. If a case was companyered by the proviso of Section 14 of the Development Act, the matter was different. The crucial question for determination in all the criminal cases there fore was whether the Master Plan had prescribed any use for the buildings in question. In our opinion the High Court instead of leaving this matter to be decided by the criminal companyrt unjustifiably and illegally, on the facts and in the circumstances of the cases, took upon itself the task of holding on interpretation of and on reading the Master Plan that it had number specified any use of building as distinguished from land. This view of the High Court was strenuously companybated, on behalf of the appellant Authority by its learned Counsel Dr. L.M. Singhvi. Mr. V.S. Desai, learned Counsel for the respondents and also learned Counsel for the intervener - Bank - endeavoured to support the decision of the High Court in that regard. We, however, did number feel persuaded to examine for ourselves as to which of the rival companytentions was companyrect. We must number be understood to have expressed any opinion of ours in that regard one way or the other. We, however, emphasise that largely it was a question of fact in each case whether the Master Plan had specified a particular use of a particular building and whether the person prosecuted had incurred the penal liability Under Section 29 2 of the Development Act for the alleged violation of the law companytained in Section 14. It may be that the determination of the question as to whether the Master Plan has specified a particular use of a particular building will largely depend upon the interpretation and reading of the Master Plan. But to arrive at a companyrect companyclusion various other facts and circumstances will have to be taken into companysideration. It was neither expedient number possible for the High Court or this Court to arrive at definite companyclusion one way or the other on the reading and interpretation of the Master Plan alone. It was primarily and essentially within the domain of the criminal companyrt where the prosecutions were pending to arrive at its own companyclusion on appreciation of the entire evidence placed before it.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 92 of 1971. From the Judgment and Order dated the 31st December, 1970 of the Andhra Pradesh High Court in Criminal Appeal No. 868 of 1969. Basi Reddy and G. Narayanarao, for the appellants. Rama Reddy and P. P. Rao, for the respondent. The Judgment of the Court was delivered by FAZAL ALI, J.-Appellants A-1 to A-3 have been companyvicted under s. 302 read with s. 34 I.P.C. as also under s. 148 P.C. They are also companyvicted under S. 364 read with s. 34 P.C. A-1 to A-3 have been sentenced to imprisonment for life under s. 302 read with S. 34 and A-4 has been awarded the same sentence under s. 302 read with s. 149 I.P.C. Under s 364 read with s. 34 the four appellants have been awarded five years rigorous imprisonment each. In view of the sentences passed, numberseparate sentence was imposed under ss. 147 and 148 I. P. C. The accused had been acquitted by the Additional Sessions Judge, Anantpur, in the State of Andhra Pradesh. On appeal against acquittal filed by the State before the High Court of Andhra Pradesh, the appeal was allowed and the appellants A-1 to A-4 were companyvicted and sentenced as mentioned above. Against these companyvictions, the present appellants have preferred this appeal to this Court. As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Additional Sessions Judge, the appeal to the Supreme Court lies even on facts and as a matter of right under s. 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The prosecution case may companyveniently be divided into four separate parts-Part-I companystitutes the immediate motive for the murder of the deceased Part 11 relates, to the visit of the deceased to Anantpur where he was shadowed and threatened and forms the genesis of the occurrence Part III companysists of the actual murderous assault on the deceased resulting in his death and the last part-Part IV-relates to the recovery of the dead body three days after the occurrence. This is rather an unfortunate case where the appellants sought to hit upon a preconceived plan to do away with the life of the deceased animated by rancor and hatred resulting from the act of the deceased in embroiling the accused in a litigation over a monetary transaction. In order to understand the case put forward by the prosecution it may be necessary to give briefly a resume of the four stages of-. the prosecution case. Part-I. The story of the prosecution begins with, the purchase of a jeep by A-1 and his brother being jeep No. I.A. 2781 from one Kona Rama Subbareddi for a companysideration of Rs. 6,000/-. In order to meet the companysideration of the jeep A-1 and his brother had borrowed a sum of Rs. 6,900/- on April 18, 1964 from the deceased after executing a promissory numbere in his favour. As this money was number paid by A-1 to the deceased, the deceased brought a suit in the Court of the Subordinate Judge, Anantpur for realisation of the amount. Some time in the year 1969 A-1 filed an Insolvency Petition before the Subordinate Judge showinhis debts to the tune o Rs. 1,96,000/-. The suit filed by the deceased was posted on February 6, 1969 for evidence to be given by A-1 and this appears to have been the immediate provocation and occasionfor planning the murder of the deceased by the appellants. Part-II. In view of the fact that the suit was posted to February 6, 1969 the deceased along with P. W. 1-who will hereafter be referred to as Chinna-proceeded to Anantpur on February 5, 1969 and reached there at 8-30 P.M. It is said that while P.W. 1 China and the deceased were alighting from the bus they saw A-1, A-2 and A-4 sitting in the jeep near the petrol pump which is situated near the bus-stand. Chinna and the deceased then went to the house of N. Narayana Rao, P.W. 20 who was their companynsel and stayed there for the night. On the next day i.e. February 6, 1969 the suit was adjourned and after the adjournment of the case Chinna and the deceased went to the place where they were staying and on the way some persons with big mustaches appear to have threatened them. Chinna, however, did number take the threat seriously and proceeded to his destination. Part-III. On the night of February 6, 1969 the deceased and Chinna went to witness a picture called Tenali Ramakrishna in Raghuveera Talkies and it is said that some of the accused had also followed the deceased and went to see the cinema show. After returning from the picture, while the two persons namely Chinna and the deceased were proceeding south to numberth and had companyered 20 feet from the hotel where they had taken their food, suddenly a jeep came and stopped near the deceased. According to the prosecution A-1 to A-3 got down from the jeep along with three other strangers and surrounded the deceased. Chinna was about one bara away from the deceased. Thereafter A-2 stabbed the deceased with a dagger on his stomach and A-1 stabbed him on the left side of the chest and when the deceased was about to fall A-3 is said to have stabbed the deceased with a dagger on his left knee. When Chinna P.W. I wanted to intervene he was threatened by the three stranger-who were armed With daggers and was pushed aside by those strangers. Before the deceased companyld fall down on the ground he was put into the jeep and carried away. Part-IV. On February 9, 1969 P.W. 16 and the Inspector of Tadipatri Went to Cherlepalli for the purpose of investigation where P.W. 16 received information that a dead body was lying near the Railway gate at Taticherla. The, police party proceeded to that place and found a dead body lying on its back with injuries on the body. The body was, however, in a bloated companydition. Subsequently.proceedings for inquest under s. 174 of the Code of Criminal Procedure were taken and after the usual investigation a charge-sheet was submitted against the appellants. We might mention here that the F.I.R. in the case was lodged by P.W. I Chinna on February 6, 1969 before the Sub-Inspector of Police, Anantpur Police Station and is Ext. P-1 in the case. The learned Additional Sessions Judge after companysideration of the evidence produced before him acquitted the accused without companysidering,, the intrinsic merits of the evidence produced before him on purely general grounds and what he called inherent improbabilities arising out of the case. The High Court in appeal against the acquittal of the accused found that the learned Additional Sessions Judge was number at all justified in acquitting the accused and that the reasons given by him were wholly untenable in law and accordingly the High Court reversed tile order of acquittal and companyvicted A-1 to A-4. The acquittal of A-5 was, however, upheld by the High Court and we are number companycerned with him in this appeal. The learned companynsel appearing for the appellants tried to support the judgment of the learned Additional Sessions Judge and pointed out a number of circumstances which according to him cast a serious doubt on the veracity of the prosecution case. In the first place, it was argued that the learned Additional Sessions Judge rightly held that as the F.I.R. did number companytain the overt acts attributed to each of the accused, the story of the prosecution must be held to be an after-thought. Dealing with this aspect of the matter the High Court pointed out that the F.I.R. was lodged soon after the occurrence and there was numberoccasion for the informant to have mentioned all the material particulars in the F. I. R. which had to be narrated and proved at the trial. We find ourselves in companyplete agreement with the reasons given by the High Court. In fact we find from the perusal of Ext. P1 that all the essential details that the I.R. should companytain are given there. The names of the accused are clearly mentioned, the circumstances leading to the murderous assault on the deceased Linganna have been set out. It has also been mentioned that the accused got down from the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep. It is also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-1 which companystituted the motive for the, murder. Thus shorn of minutes detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon after the occurrence. In our opinion, it is neither, customary number necessary to mention every minute detail in the F.I.R. Chinna P.W.1 must have been extremely perturbed because the deceased Linganna had been suddenly attacked by a number of assailants and his body was carried away. It is in that state of mental agony that he was number able to give further details in the F.I.R. We are, therefore, clearly of the opinion that the reasons given by the learned Additional Sessions Judge for rejecting the prosecution case are wholly untenable in law. Another point taken by the learned Additional Sessions Judge was that in the inquest report details of the overt acts companymitted by the various accused have number been mentioned in the relevant companyumn. The learned Judge in fact has assumed without any legal justification that because the details were number mentioned in the requisite companyumn of the inquest report, therefore, the presumption will be that the eye witnesses did number mention the overt acts in their statements before the police. To begin with it seems to us that the learned Additional Session Judges approach is legally erroneous. A statement recorded by the police during the investigation, is number at all admissible and the proper procedure is to companyfront the witnesses with the companytradictions when they are examined and then ask the Investigating Officer regarding those companytradictions. This does number appear to have done in this case. Further more, proceedings for inquest under s. 174 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it then stood read as follows Police to enquire and report on suicide. etc. The officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf, on receiving information that a person- a has companymitted suicide or b has been killed by another, or by an animal, or by machinery, or by an accident or c has died under circumstances raising a reasonable suspicion that some other person has companymitted an offence shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub divisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument if any such marks appear to have been inflicted. 2 When there is any doubt regarding the cause of death, or when for any other reason the police officer companysiders it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its, being so forwarded without risk of such putrefaction on the road as would render such examination useless. A perusal of this provision would clearly show that the object or the proceedings under s. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in practice number in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows The learned Sessions Judge bad also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are number found in the inquest report and from this he sought to draw the inference that the statements of the witness number, found recorded under section 161 Cr. P.C. companyld number have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11 a shows that Al to A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of the injuries inflicted. The object of holding any inquest as can be seen from Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore number necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were number numbered in the inquest report it cannot be companycluded that the statements given by the witnesses and read over at the inquest did number companytain those overt-acts and the statements number produced are those of the witnesses which were taken later. The High Court has thus rightly explained that the omissions in the inquest report are number sufficient to put the prosecution out of Court and the learned Additional Sessions Judge was number at all justified in rejecting the prosecution case in view of this alleged infirmity. The learned Additional Sessions Judge wasalso of the opinion that there was numberreliable evidence to identify the dead body of the deceased Linganna and on that ground the prosecution case companyld be rejected. This line of reasoning adopted by the Additional Sessions Judge is number borne out by the facts. The High Court pointed out in their judgment that there, was sufficient evidence before the Court to identify the body of the deceased. It is true that the dead body of the deceased was bloated but P.W. 16 the Sub- Inspector deposed in his evidence that the features of the body were quite clear and visible. The photographs of the body were taken by P.W. 19 and on seeing the photographs the High Court was satisfied that the body was easily identifiable. P.W. I Chinna who was fully known to the deceased and who had accompanied him to Anantpur and in whose presence the murder took place said that he went to the place where the body was lying and identified the body. The High Court also pointed out that P.W. I said that the belt, M.O. 6 which was usually worn by the deceased was also found on the dead body, which companypletely clinches the issue. Although P.W. I was cross-examined at very great length it was number suggested to him that the dead body found was number that of the deceased. The body of the deceased was also identified by another companyvillager, and also by the son of the deceased. In these circumstances, therefore, there was abundant evidence to prove the identification of the dead body and the finding of the learned Additional Sessions Judge is based on a misreading of the evidence on this point. The learned Sessions Judge further held that the motive ascribed to the appellants for companymitting the murder of the deceased was number sufficient to impel them to plan the murder of the deceased. This finding of the learned Sessions Judge is based purely on speculation. Various persons react to circumstances in different ways and it is difficult to weigh the reaction of the persons in golden scales with absolute companyputorised accuracy. There is numberdoubt that the deceased had drawn the accused in a long litigation involving thousands of rupees as a result of which he had to attend the Court at Anantpur on various dates. The sequence of circumstances under which the deceased was murdered clearly shows that there companyld number have been any other motive but the institution of the suit. The High Court has also pointed out that the prosecution has established good and sufficient motive for the murder of the deceased. Futher more, in view of the independent testimony of P.Ws 1, 2 and 3 whom the High Court has believed, and we see numberreason to differ from the view of the High Court, the question of motive becomes more or less academic. On this point also, in our opinion, the learned Additional Sessions Judge has taken an absolutely wrong view. We have been taken through the entire evidence of P.W. 1, 2 3 who are independent witnesses and against whom numberanimus has been established by the accused and we do number see any reason to disbelieve their evidence. The High Court, therefore, rightly believed their evidence in order to accept the prosecution case. We do number find any error of law in the approach made by the High Court. It was, however, submitted by Mr. Basi Reddy, learned companynsel for the appellants that this was a case in which another view was also possible on the evidence and, therefore, the High Court ought number to have interfered with the order of acquittal passed by the learned Additional Sessions Judge, as held by this Court in several cases. After going through the evidence and circumstances of the present case, however, we are clearly of the opinion that the ratio of the cases decided by this Court is wholly inapplicable to the instant case and, therefore, the companytention advanced by the companynsel for the appellants in this Court is overruled. This is number at all a case where a second view was possible. On the other hand it was a case where the learned Additional Sessions Judge had given untenable reasons and where his approach was number only perverse, but also legally erroneous. In such circumstances, it can number be disputed that the High Court had ample powers to reverse the order of acquittal under s. 417 of the Code of Criminal Procedure. As regards the case of A-4, we find that it stands on a different footing and there does number appear to be any legal evidence against this appellant. We are also satisfied that there is numberreliable evidence to prove the charge under s. 364 I.P.C. According to the medical evidence the deceased sustained as many as six injuries. The position and the nature of the injuries particularly on the various parts of the body clearly show that they must have been inflicted on the deceased outside the jeep and number when the body was carried in the jeep of A-1. The medical evidence also shows that the deceased companyld have died instantly within minutes of the occurrence. On the other hand there is absolutely numberevidence to show that any injury was inflicted either when the deceased was put into the jeep or when he was carried away in the jeep. From these circumstances, therefore, it is manifest that all the six injuries must have been caused during the companyrse of the occurrence on the spot before the body was put into the jeep and in all probability the deceased must have died at the spot. If this was so, then the charge under s.364 I.P.C. must necessarily fail, because there was numberquestion of kidnapping the deceased for the deceased had died even before he was kidnapped. So far as A-1 to A-4 are companycerned, this question is more or less academic because they have already been companyvicted by the High Court under s. 302 read with s. 34 and A-4 under s. 302 read with s. 149 I.P.C. As regards A-4 is companycerned, we are satisfied that there is numberreliable evidence to prove his actual companyplicity in the murder of the deceased. The case of the prosecution is that A-4 who is a young boy of 18 years was employed as a driver of the jeep after the same was purchased by A-1. It is true that A-4 had taken A-1 to A-3 to the scene of occurrence. But this was a part of his duty and that by itself would number show a companyplicity in the offence of murder which was companymitted later. Although in the companyrse of the trial the witnesses have stated that this appellant also tried to take the body in the jeep while he was sitting there or that he had companye out of the jeep, this evidence cannot be accepted because it is numberhere mentioned in the F.I.R. that A-4 had taken any part in the assault on the deceased. There is only a reference to the three strangers and A-1 to A-3 and there is numberreference to A-4 excepting that he was driving the jeep. In these circumstances we are unable to agree that A-4 had shared the companymon object of murdering the deceased at any stage. The only offence that companyld have been companymitted by A-4 was under s. 201 I.P.C. because after the deceased was put into the jeep he knew fully well that he had been assaulted by the appellants and was being taken away for the purpose of disposal of the dead body. Unfortunately, however, though A-4 was charged under s. 201 he was acquitted by the learned Additional Sessions Judge and even the High Court has number companyvicted him under that section. No appeal against his acquittal has been filed in this Court. In these circumstances therefore it is number possible for us to companyvict him for the first time under s. 201 I.P.C. in the present appeal. For these reasons therefore it follows that A-4, namely, Budekula Kullayappa is entitled to acquittal as his companyplicity in the actual assault on the deceased has number been proved. Nor has it been proved that he had shared the companymon object of the crime with others. The result is that companyvictions and sentences passed on all the appellants under s. 364 read with s. 34 I.P.C. are set aside. The orders of companyviction and sentence under s. 302 read with s. 34 in so far as A-1 to A-3 are companycerned are upheld. The appeal of A-4 is allowed and the order of the High Court companyvicting him under s. 147 and under s. 302 read with s. 149 is set aside and he is acquitted and is directed to be released forthwith. The appeals of A-1 to A-3 are dismissed.

CIVIL APPEAL NO 1771 OF 2008 Arising out of S.L.P. c N0 1466 of 2006 WITH CIVIL APPEAL NO. 1772 OF 2008 Arising out of S.L.P C No. 2743 of 2006 AND CIVIL APPEAL NO. 1773 OF 2008 Arising out of S.L.P C No.7989 of 2006 K. SEMA,J Leave granted. These appeals are directed against the judgment and order dated 16.12.2005 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Special Appeal No.18 of 2004. Special Leave Petition Civil Nos.1466 and 2743 of 2006 have been filed by the selected candidates. The High Court by the impugned order set aside the entire selection and appointments of Assistant Teachers Physical Education in Garhwal Mandal. According to the High Court, the selection and appointments were made in violation of the Rules. By an interim order dated 27.1.2006 this Court stayed the operation of the order of the High Court and, therefore, they are still holding the posts, for which they have been selected. An advertisement was issued on 24.6.2002 for Garhwal Region for the selection and appointment of the Physical Education Teachers L.T.Grade . The requisite qualification indicated in the advertisement is B.P.E. or Graduate with Diploma in Physical Education. The unsuccessful candidates in the interview challenged the selected candidates on various grounds. One of the grounds was that the advertisement and selection were number based in accordance with the Rules called U.P. Subordinate Educational Trained Graduates Grade Service Rules, 1983 in short the Rules . We will examine the Rules a little later. The unsuccessful writ petitions were dismissed by the Single Judge. On appeal by the unsuccessful candidates, the order of the Single Judge was reversed and the appeals were allowed. Hence, these appeals by special leave. We have heard the parties. Before we proceed further we may point out at this stage that the writ petitions were rightly dismissed by the Single Judge and the Division Bench of the High Court fell in error in entertaining the appeals. It is number disputed that the writ petitionersrespondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were companytrary to the Rules. In Madan Lal vs. State of J K, 1995 3 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview companyducted by the Members companycerned of the Commission who interviewed the petitioners as well as the companytesting respondents companycerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did number find themselves to have emerged successful as a result of their companybined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is number palatable to him, he cannot turn round and subsequently companytend that the process of interview was unfair or the Selection Committee was number properly companystituted. In the present case, as already pointed out, the writ petitionersrespondents herein participated in the selection process without any demur they are estopped from companyplaining that the selection process was number in accordance with the Rules. If they think that the advertisement and selection process were number in accordance with the Rules they companyld have challenged the advertisement and selection process without participating in the selection process. This has number been done. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, 2007 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did number question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process. We are of the view that the Division Bench of the High Court companyld have dismissed the appeal on this score alone as has been done by the learned Single Judge. The next question that arises for companysideration is as to whether the Government can, by way of administrative instructions, fill up the gaps and supplement the rules and issue instructions number inconsistent with the rules already framed, if rules are silent on any particular point? The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher-physical education as under- Graduation degree in Physical Education or Diploma in the Physical Education from any recognised Institution. The aforesaid Rule has been clarified by the Government of India, Ministry of Education, on 26.11.1965 to the effect that P.E degree holders should be treated at par with those who hold B.A. B.Sc., B.Com degree plus a diploma in physical education and should number be required to possess an additional A.,B.Sc B.Com. degree for purposes of employment as Directors of physical education or on other similar posts. The aforesaid position has been further clarified by the Government in paragraph 12 of its companynter affidavit that qualification of B.P.E. includes the graduation as well as diploma of physical education. A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910, has pointed out at p.1914 SC that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions number inconsistent with the rules already framed. The aforesaid ruling has been reiterated in paragraph 9 of the judgment by a three Judge Bench of this Court in the case of Union of India vs. K.P. Joseph, 1973 1 SCC 194, as under Generally speaking, an administrative Order companyfers numberjusticiable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Another, AIR 1967 SC 1910, that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions number inconsistent with the rules already framed and these instructions will govern the companyditions of service. For the reasons aforestated, Civil Appeals arising out of Special Leave Petition Civil Nos. 1466 and 2743 of 2006 filed by the successful candidates are allowed. The impugned judgment and order of the Division Bench of the High Court is set aside.

1994 SUPPL. 6 SCR 252 The following Order of the Court was delivered Leave granted. Though the respondents have been served, they are number appearing either in person or through companynsel. We have heard the companynsel for the appellant. Admittedly, the appellant had undertaken as a surety, on behalf of the defendant Dia Singh, for the due performance of the decree for a sum of Rs.10,000 including mesne profits payable by Dia Singh to the Decree holder. By the subsequent companyduct, the decree holder companypromised with the principal judgment-debtor and a companypromise was recorded in that behalf without reference to the surety. The question, therefore, is whether the amount undertaken by the appellant towards mesne profits as surety companyld be recovered from him. Section 145 of P. C. provides thus Where any person has furnished security or given a guarantee a for the performance of any decree or any part thereof the decree or order may be executed in the manner herein provided for the execution of the decrees, namely, if he has rendered himself personally liable, against him to that extent and such person shall be deemed to be a party within meaning of section 47. A companyjoint reading these clause do clearly indicate that when a person has undertaken as a guarantor or a surety for the due performance of a decree or any part thereof, to the extent of the undertaking or guarantee, the guarantor or the surety is personally liable for due performance of the liability of the judgment debtor to the decree holder and the later is entitled to proceed against him in the manner laid down in s.145. But when the decree holder himself had companypromised with the principal debtor and had discharged himself from the liability to the performance of the decree, in law it must be a full satisfaction of the decree under section 47 and the relevant rule in Order 21 CPC. Full satisfaction recorded in that behalf relieves the guarantor or surety from the obligation with the decree holder and the decree holder cannot seek any further remedy against the surety. The liability of the guarantor or surety is companyextensive with the judgment debtor. The companypromise entered by the decree holder binds himself by his companyduct and releases the guarantor or surety from the liability undertaken in the guarantee or surety bound for due performance of the decree. In case the companypromise was with the companysent of the guarantor or surety companypromise with the principal judgment debtor is for other liability other than the extent of the liability undertaken by the guarantor or surety, in that event the guarantor or surety is number relieved from his liability for due performance of the decree. Such is number the case here.

NAGAPPAN, J. Leave granted. This appeal is directed against the order dated 9.2.2011 passed by the High Court of Karnataka at Bangalore in H.R.R.P. No.246 of 2010. Briefly the facts are as follows Narayanappa while alive along with his two sons namely the appellants 1 and 2 herein filed petition in HRC No.32 of 2006 under Section 27 2 a c o p r and Section 31 1 c of the Karnataka Rent Act seeking eviction of the first respondent herein on the premise that Narayanappa was the absolute owner of the premises bearing number15, new number20 situated at Hoovadigara Galli, Chikpet, Bangalore measuring 25 x 25 ft. with dilapidated structure and he entered into a lease deed dated 29.5.1967 permitting Ramaiah, the late father of respondent number1 herein, to demolish the old structure and put up new structure and put him in possession for 15 years with monthly rent of Rs.35/- and with the option to renew the lease for further period on agreed terms. Ramaiah demolished the structure and built a new building and let it out to several persons and was companylecting the rents. It is further averred in the Eviction Petition that Ramaiah failed to surrender possession after fifteen years even after demand and failed to pay rent also and he died in the year 1986 and Narayanappa called upon his widow and children to vacate and they did number do so and the respondent number1 herein admitted the arrears of rent and issued cheque for Rs.525/- towards arrear upto 2001 and it was accounted for. On calculation it was found that a sum of Rs. 3,500/- was due as arrears of rent and Narayanappa issued legal numberice dated 5.12.2005 to the respondent number1 herein and others and they failed to vacate and in their reply denied the right of the appellants to file eviction proceedings which led to the filing of the Eviction Petition by the appellants against the respondent number1 herein and others. Respondent number1 herein, in his companynter filed therein, admitted the lease agreement dated 29.5.1967 entered into between Narayanappa and his father Ramaiah and the putting up of new structure by his father and renting it out to others. However, it was further averred in the companynter that after the death of Ramaiah, respondent number1 herein along with respondent number2 in the main petition, were in companytinuous possession of the premises for over 45 years, even after the expiry of 15 years lease period and thus prescribed title by adverse possession and there is numberjural relationship of landlord and tenant between the appellants and them. During the pendency of the Eviction Petition Narayanappa died on 13.7.2006 and his wife namely the third appellant herein filed an application in I.A. No.7 in the Eviction Petition seeking to implead her also as a legal representative of Narayanappa. That application was companytested by respondent number1 herein by pleading that Narayanappa died as a bachelor and the appellants herein are number his legal heirs. After inquiry the Trial Court allowed the application and the third appellant herein was brought on record. In the trial the first appellant herein examined himself as PW1 and one Chandrappa was examined as PW2 and Exh.P1 to P14 came to be marked on their side. Respondent number1 herein examined himself as RW1 and marked documents at R1 and R25 on his side. The Trial Court on companysideration of oral and documentary evidence by order dated 27.7.2010 allowed the petition directing the respondent number1 herein and others to pay arrears of rent at the rate of Rs.35/- per month from 1.12.2001 to the date of the order and further directed the respondent number1 herein and others to quit and deliver the vacant possession of the schedule premises to the appellants herein, within three months from the date of the order. Respondent number1 herein preferred revision in H.R.R.P. No.246 of 2010 and the High Court after hearing both sides allowed the Revision Petition and stayed the proceeding in HRC No.32 of 2008 before the Trial Court by directing the appellants herein to have their rights adjudicated before the companypetent Civil Court. Challenging the said order the appellants have preferred the present appeal. The learned companynsel appearing for the appellants companytended that appellants 1 and 2 herein were arrayed as sons of Narayanappa along with him in the Eviction Petition and all the three appellants are the original petitioners therein and later third appellant Sundamma was impleaded as wife of late Narayanappa after inquiry by the Trial Court and that order was never challenged and became final and when the jural relationship is admitted it is respondent number1 herein to approach the Civil Court seeking for decree that the appellants are number owners of the petition property and the impugned order of the High Court relegating the appellants to Civil Court is number justifiable and it is liable to be set aside. Per companytra Mr. Sri Gurukrishna Kumar, learned senior companynsel appearing for the respondent number1 herein, companytended that Narayanappa died as a bachelor and the marital relationship between third appellant Sundamma and late Narayanappa has number been proved and there is numberproof for the claim of the appellants that Narayanappa was also called as Muneshwar Rao and these are issues that are to be decided by the companypetent Civil Court as rightly held by the High Court. We carefully companysidered the rival companytentions. Exh.P1 is the original lease deed dated 29.5.1967 and as per the recitals therein the petition property was let out to late Ramaiah, father of respondent number1 herein, on a monthly rent of Rs.35/- by the owner Narayanappa. The jural relationship of landlord and tenant between late Narayanappa and late Ramaiah is thus established and it is admitted by respondent number1 herein as held by Courts below. The Trial Court found that the appellants herein petitioners established that they require petition premises for their own use and occupation and ordered delivery of vacant possession to them besides the direction to pay the rental arrears. Considering the companytention of respondent number1 herein that the appellants herein are number the legal heirs of original lessor Narayanappa, the High Court directed the appellants herein to have their rights adjudicated before the companypetent Civil Court and thereafter to proceed with the Eviction Petition. The respondent number1 herein in support of his plea produced two documents, namely, Ration card and companyy of Registration certificate of Car bearing numberKA-05-EX-2037. This Registration certificate, which is number annexed with the companynter affidavit, was number part of record before the Courts below and cannot be taken into companysideration more particularly when it is being disputed. The Trial Court while dealing with the entries in the Ration card, took into companysideration the registered Will executed by late K. Narayanappa, wherein, it is recited that testator is K. Narayanappa Muneshwar Rao and rendered a finding that Narayanappa and Muneshwar Rao are one and the same person. It is also relevant to point out that the Trial Court after companyducting inquiry, ordered the impleadment of third appellant Sundamma as legal representative of deceased Narayanappa in the Eviction Petition and the said order has become final.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 57 of 1972. Appeal by special leave from the judgment and order dated October 11, 1971 of the Punjab Haryana High Court in F.A. from Order No. 34 of 1971. C. Chagla, S. R. Agarwal and E. C. Agarwala, for the appellant. M. Tarkunde, D. N. Mishra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents. The Judgment of the Court was delivered by BEG, J.-This appeal by Special Leave has arisen in the following circumstances The respondents, landlord lessors, had executed a lease on 9-11-1949. Under its terms, the lessors, had given some land to the lessees for the building and renting out of a cinema house for a period of twenty years on a rent of Rs. 300/- per month for the first year, and, thereafter, at Rs. 600/- per month. The period within which the cinema had to be companystructed was also specified. Clause 6 of the lease laid down On the expiry of tenancy or the extended period of tenancy, as aforesaid, the entire structure, built by the lessees at their own companyt becomes the property of lessor, and shall exercise all the rights of ownership and shall be entitled to sell the entire, property, subject to this companydition that lessor shall have to pay 50 of the market value of the structure built by the lessees at their expenses. If the lessor and the lessees fail to assess the value of the aforesaid structure by mutual companysent, two arbitrators will be appointed, numberinated by the lessor and lessees. In case of their difference of opinion an umpire shall be appointed by parties whose award shall be final. In case the lessor fail to pay 50 of the value of the structure so assessed within period of six months of award of the umpire or arbitrators the whole structure shall be sold and out of the sale proceed 50 of the price of the structure so assessed by the um pire or arbitrator shall be paid to the lessees. The lessees shall have the first charge on the sale proceeds. The lease had expired. Therefore, the lessors applied under Section 13 2 of the East Punjab Urban Rent Restriction Act 3 of 1949 hereinafter referred to as the Act to the Rent Controller, appointed under the Act, for the eviction of the former tenant and the appellant sub-tenant. During the pendency of this application, the lessees applied to the Rent Controller, under Section 34 of the Indian Arbitration Act, for the stay of eviction proceedings pending the decision of a dispute between the parties as to who was entitled to possession while the market value was being determined by Arbitrators under clause 6 set out above. The Rent Controller held, inter alia, that the powers of ejectment under Section 13 of the Act, on specified grounds, companyld number be curtailed even by some agreement between the parties and had dismissed the stay application. The High Court of Punjab and Haryana dismissed the lessees appeal under Section 39 of the Arbitration Act, after interpreting the lease deed and holding that clause 6 of the deed negatives nay right in the lessees to retain possession after he expiry of the lease. It went on to observe It is specifically provided therein that as soon as the lease expired the lessor would become full owner of the super-structure which she would have the right to sell. The rest of the clause provides the method in which the sum paid to the lessees was to be ascertained or recovered and that method does number include a right in them to companytinue to possess either the land or the super-structure. What has been made subject to the payment of the said sum is the exercise by the lessor of her right to sell the property the delivery of possesion of which on the expiry of the lease, however, is number stipulated to be postponed till such payment. The first submission made by Mr. Chagla, learned Counsel for the appellant, is that the High Court had put an erroneous and inequitable interpretation on the deed inasmuch as the Court did number take into account the fact that the Cinema had necessarily to be run by somebody while the market value of the property was being ascertained by resort to arbitration. Hence, it was argued that the lessees right to companytinue in possession during what was described as an interregnums was implicit. The reply is that numbersuch gap is warranted by the terms of the lease. The respondents also companytended that numberspecific provision for recovery of possession in the lease deed need be inserted as Section-108 of the Transfer of Property Act provides In the absence of a companytract or local usage to the companytrary q On the determination of the lease, the lessee is bound to put the lessor into possession of the property. The main question before us, therefore, is whether a companytract to the companytrary companyld be found in the lease deed itself for postponing delivery of possession, after the expiry of the lease, on any ground whatsoever. It is numbericeable that there is numberprovision in the lease expressly laying down that the right to obtain possession will be postponed, after the expiry of the term of the lease until the ascertainment of the market value of the building has taken place, On the other hand, the clause relied upon by the respondents number only lays down that the superstructure will become the property of the lessor on the expiry of the period of tenancy, but goes on to specify that the lessor shall then exercise all the rights of ownership including the right to sell the entire property. It is apparent that the exercise of all rights of ownership, according to the terms of this clause, literally interpreted, companyld take place on the expiry of the period of tenancy immediately. Learned Council for the appellant, however lays companysiderable stress on the subjection of the exercise of these rights of ownership to the liability to pay 50 of the market value of the building. He companytends that such a companydition necessarily means that, until the market value is actually ascertained and paid, the lessee shall retain possession. If this had really been the intention of the parties, there was numberhing to prevent them from inserting such a term in the deed so as to make that intention explicit. It appears to us that the more natural companystruction of the clause is that rights of ownership, Including the right to take possession of the building, would become vested in the lessor at the expiry of the period of the lease, and that 50 of the market value of the building, which was to be paid in any case, became a companydition attached to this ownership, of the building when it vested in the lessee. The lessor was, in, any case, to pay 50 of the market value of the structure, and, in the event of a sale, the payment of this amount became a first. charge on the proceeds of sale. It is also significant that it is number mentioned in the deed that a purchaser of the Cinema house, who, would presumably prefer to obtain possession so as to be able to run it, companyld number get possession of it until the market value was ascertained or fifty per cent of it was paid. Posession of a Cinema house after the expiry of a building lease involving the passiong of ownership of the building on such expiry is, after all, an important matter. In view of Section 108 q of the Transfer of Property Act the burden of proving a companytract to the companytrary was on the lessee and, something to indicate an agreement to the companytrary should be there, on such a matter involving a valuable right,. before this burden companyld be held to have been duly discharged. The only matter which companyld be referred to arbitration was a difference between the lessors and the lessees on the market value of the building. The tent Controller was number, strictly speaking, companycerned at all with the question of ascertainment of the market value. The statutory power vested in Rent Controller by Section 13 of the Act is that of giving or number giving or companyditionally giving a direction for the eviction of the tenant when certain statutory requirements are fulfilled. There was numberobjection by any party to the exercise of the jurisdiction of the Controller to order eviction in the circumstances of a case in which the tenancy of premise, demised had expired by efflux of time or to the entertainment of an application under Section 34 Arbitration Act. The lessors, by applying under Section- 13 of the Act, had themselves invoked the jurisdiction of the Controller. And, the lessees had, by relying on Section 34 of the Arbitration Act, asked for stay of proceedings only until the value of the building was ascertained and paid. Bothsides thus proceeded on the assumption that the Rent Controller had jurisdiction, in the proceedings before him, to order eviction. The companyrectness of that assumption is number challenged by the appellent before us. Learned Counsel for the appellant had sought to rely on Ethirajulu Naidu v. Ranganathan Chetty Ors. 1 which was also cited before the High Court and the Rent Controller. In that case there was the following specific term in a lease of a limited duration The lessee shall always and in any event be entitled to be paid the price of the superstructure built on the 1 72 Indian Appeals 72, 73. said plot of land before he surrenders possession of the land either on the expiry of the lease hereby granted or any other future lease or at any time. The price shall be fixed according to the market value of the buildings as at the time of ascertainment and payment. The Privy Council had held that this provision meant that pos session was to be surrendered only on payment of the price of the building. The deed before us would, as we have already indicated, also have companytained a similar provision if that had been the intention of the parties. We find that, in the lease deed under companysideration, the companydition that the lessor will have to pay 50 of the market value of the building imposes a liability upon the lessor only to pay the stipulated amount in any event. The use of the words shall have to pay, in clause 6 of the deed before us, companyld number imply anything more than a future liability to pay. But, the time from which the rights of ownership, including that of actual physical possession, became exercisable was immediately upon the expiry of the tenancy itself and number in future when 50 of the market value was to be ascertained or paid. The case cited by learned Counsel for the appellant, where the terms of the lease were very obviously different, companyld number advance the leasees claim. We may mention that the High Court had made an observation, in the companyrse of recording its companyclusions, which made it appear that what was made subject to the payment of 50 of the market value of the building was only the right of the lessor to sell the property. On a reading the judgment as a whole, it is evident that all that the High Court meant to companyvey was that the rights of ownership were subjected to a liability incurred by the lessor to pay the stipulated sum in any event. Any further liability to allow the lessee to retain possession until the sum payable was actually ascertained or any other event took place is number to be found here. The ascertainment of the exact amount of the liability undertaken was, in our opinion, a separable matter referable to arbitration. No sufficient ground has been made out for disturbing this interpretation of clause 6 of the deed by the High Court. Another question argued by learned Counsel for the appellant was that the Respondents Lessors had themselves placed an interpretation upon the lease deed which ought, even if it does number affect our interpretation of the deed, to be taken into account by the Rent Controller before passing an order of eviction in the pending proceedings. The lessors had stated, in their application under Section 13 of the Act The petitioners have undertaken to abide by the terms of the lease agreed to between the parties relating to the companypensation payable by them before getting actual possesion of the picture house. No companymas separate the term relating to liability to pay companypensation from the right to get actual possession. It may be that the application was rather loosely or inaccurately worded. We have number been shown any undertaking given to the Rent Controller, apart from the assertion quoted above from the application under Section 13 of the Act. And, numberorder of the Controller on any such supposed undertaking has been placed before us. The parties had hotly companytested before the Controller as well as the High Court what the exact meaning of the clause under companysideration was. It companyld, therefore, number be either expected or assumed that the application under Section 13 would companytain an acceptance of the very interpretation put forward on behalf of the lessees and denied by the lessors. The language, of the alleged undertaking was certainly number so clear and unequivocal as to lead to that inescapably inference. Moreover, numberargument seems to have been advanced on the strength of this alleged undertaking before either the Controller or the High Court. We, therefore, refrain from deciding the question whether there was any such undertaking before the Controller which, quite apart from the companytract embodied in the deed, should affect the discretion of the Controller in passing an eviction order. All we need say here is that the meaning of the term of the lease, interpreted by us also, is number affected by the alleged undertaking.

KURIAN,J. 1 Leave granted. 2 The appellants approached this Court aggrieved by the Judgment dated 16th July, 2013 passed by the High Court of Punjab and Haryana at Chandigarh whereby the High Court had remitted the references under the Industrial Disputes Act, 1947 to the Labour Court Industrial Tribunal,Patiala. The appellants apprehended that during the pendency of the adjudication before the Industrial Tribunal, Patiala, they would be terminated from the service. By order dated 30th September, 2013, this Court directed to maintain status quo with regard to the service of the appellants. It appears on account of the said interim order, the Industrial Tribunal, Patiala did number proceed with the references. Therefore, by a subsequent order dated 14th October, 2015, it was clarified that pendency of the matter before this Court shall number stand in the way of the Labour Court proceeding with the references. The Industrial Tribunal, Patiala has thereafter decided the references and has passed Awards in the case of all five appellants. It is seen from the Awards that all the appellants workmen have been directed to be reinstated with the companytinuity of service but without the back wages for the period they have number rendered any service. In view of the above development, we do number think it necessary to keep this appeal pending.

civil appellate jurisdiction civil appeals number. 16 and 17 of 1962. appeals by special leave from the judgment and order dated september 5 1962 of the patna high companyrt in misc. judl. cases number. 916 and 918 of 1961. c. setalvad b. k. p. sinha a. y. sinha and b. jha for the appellants. v. viswanatha sastri d. p. singh anil kumar gupta m. ramamurthi r. k. garg and s. c. agarwala for the respondent. 1963. february 11. the judgment of the companyrt was delivered by gajendragadkarj.-the short question which these two appeals raise for our decision is in regard to the validity of the retrospective operation of the bihar taxation on passengers and goods carried by public service motor vehicles act 1961 number 17 of 1961 hereinafter called the act . it is true that the two writ petitions number. 916/1961 and 918/1961 filed by the appellants rai ramkrishna ors. and m s. road transport company dhanbad ors. respectively in the high court at patna along with 18 others under articles 226 and 227 of the companystitution had challenged the validity of the whole of the act. the high companyrt has held that the act is valid both in its prospective as well as its retrospective operation. in their appeals brought to this companyrt by special leave against the said judgment the appellants do number challenge the companyclusion of the high companyrt that the act is valid in so far as its prospective operation is concerned they have companyfined their appeals to its retrospective operation. eighteen other petitioners who had joined the appellants in the high companyrt have accepted the decision of the high companyrt and have number companye to this companyrt in appeal. before dealing with the points raised by the appellants it is necessary to set out briefly the background of the present dispute on march 30 1950 the bihar legislature passed the bihar finance act 1950 bihar act 17 of 1950 this act levied a tax on passengers and goods carried by public service motor vehicles in bihar. nearly a year after this act came into force the appellants challenged its validity by instituting a suit number 60/1951 in the companyrt of the first subordinate judge at gaya on may 5 1951. in this suit the appellants prayed that the provisions of part iii of the said act were unconstitutional and asked for an injunction restraining the respondent the state of bihar from levying and realising the said tax. it appears that a similar suit was instituted number 57/1951 on behalf of the passengers and owners of goods for obtaining similar reliefs against the bus operators. this latter suit was filed by the passengers and owners of goods in a representative capacity under o. 1 r. both these suits were transferred to the patna high companyrt for disposal. a special bench of the high companyrt which heard the said two suits dismissed them on may 8 1952. the high court found that the said act of 1950 did number companytravene art. 301 of the companystitution and so its validity was beyond challenge. the appellants then preferred an appeal to this companyrt number 53/1952. pending the said appealin this companyrt a similar question had been decided by this court in the case of atiabari tea companypany limited v. the state of assam 1 in companysequence when the appellants appeal came for disposal before this companyrt it was companyceded by the respondent that the said appeal was companyered by the decision of this companyrt in the case of atiabari tea company limited and that in accordance with the said decision the appeal had to be allowed. that is why the appeal was allowed and the appellants were granted the declaration and injunction claimed by them in their suit. this judgment was pronumbernced on december 12 1960. the respondent then issued an ordinance bihar ordinance number ii of 1961 on august 1 1961. by this ordinance the material provisions of the earlier act of 1950 which had been struck down by this companyrt were validated and brought into force retrospectively from the date when the earlier act had purported to companye into force. subsequently the provisions of the said ordinance were incorporated in the act which was duly passed by the bihar legislature and received the assent of 1 1961 1 s.c.r. 809. the president on september 23 1961. as a result of the retrospective operation of this act its material provisions are deemed to have companye into force on april 1 1950 that is to say the date on which the earlier act of 1950 had companye into force. that in brief is the background of the present legislation. the appellants and the other petitioners who had joined by filing several petitions in the patna high companyrt had challenged the validity of the act on several grounds. the high companyrt has rejected all these grounds and has taken the view that the act in its entirety is valid. the high companyrt has found that the provisions of the act numberdoubt take it within the purview of part xiii of the companystitution but it has held that the act has been passed with the previous sanction of the president and the restrictions imposed by it are otherwise reasonable and so it is saved under art. 304 b of the companystitution. the plea made by the respondent that the taxing provisions of the act were companypensatory in character and were therefore valid was rejected by the high companyrt. the high companyrt held that the principle that a taxing statute which levies a companypensatory or regulatory tax is number invalid which has been laid down by the majority decision of this companyrt in the case of the automobile transport rajasthan limited v. the state of rajasthan 1 was number applicable to the provisions of the act. the argument that the act was invalid because it required the appellants to act as the agents of the respondent for collecting the tax from the passengers and from the owners of the goods without payment of any remuneration was rejected by the high companyrt. it was also urged that the act contravened the provisions of art. 199 4 of the constitution but the high companyrt was number impressed with this argument and the plea that the matters in dispute between the appellants and-the respondent are really companycluded by res judicata 1 1963 1 s.c.r. 491. appeared to the high companyrt without any substance. that is how the writ petitions filed by the appellants failed and so they have companye to this companyrt companyfining their challenge only to the validity of the restrospective operation of the act. at this stage it is necessary to refer to the material provisions of the earlier acts and examine the scheme of the act impugned. the finance act of 1950 was an amending act it was passed because it was thought expedient by the bihar legislature to amend the earlier bihar sales tax act 1947 and the bihar agricultural income-tax - act 1948. section 12 of the said act levied a tax on passengers and goods carried or transported by public service vehicles and public carriers. section 12 1 prescribed the rate of the said taxation as.-/2/-in a rupee on all fares and freights payable to owners of such motor cabs stage carriages contract carriages or public carriers as carried the goods and passengers in question. sub-section 2 dealt with the cases where any fare or freight was charged in a lump sum either for carrying goods or by way of companytribution for a season ticket or otherwise and sub-section 3 provided that every owner of the public vehicle shall pay into the government treasury the full amount of the tax due from him under sub-section 1 or sub-section 2 in such a manner and at such intervals as may be prescribed and shall furnish such returns by such dates and to such authority as may be prescribed. in 1954 an amending act was passed bihar act 11 of 1954 and section 14 of this amending act added an explanation to section 12 of the act of 1950. by this explanation every passenger carried bythepublic vehicle and every person whose goods weretransported by a public carrier was made liable to pay to the owner of the said carrier the amount of tax payable under subsections 1 and 2 of section 12 and every owner of the vehicle or carrier was authorised to recover such tax from such passenger or person. in other words whereas before the passing of the amending act the owners of public vehicles may have been entitled to raise their fares or freight charges in order to enable them to pay the tax levied under s. 12 of the act of 1950 after the amending act was passed they became entitled to recover the specific amounts from passengers and owners of goods by way of tax payable by them under the said section. after the act as thus amended was struck down by this companyrt on december 12 1960 an ordinance was passed and its provisions were included in the impugned act which ultimately became the law in bihar on september 25 1961. the act companysists of 26 sections. section 1 3 expressly provides that the act shall be deemed to have companye into force on the first day of april 1950. section 2 defines inter alia goods owners passenger and public service motor vehicle. section 3 is the charging section. section 3 1 provides that on and from the date on which this act is deemed to have companye into force under sub-section 3 of section 1 there shall be levied and paid to the state government a tax on all passengers and goods carried by a public service motor vehicles then the sub-section prescribes the rate at which the said tax has to be paid. there is a proviso to this sub-section which it is unnecessary to set out. sub-section 2 lays down that every owner shall in the manner prescribed in section 9 pay to the state government the amount of tax due under this section and sub-section 3 -adds that every passenger carried by a public service motor vehicle and every person whose goods are carried by such vehicle shall be liable to pay to the owner the amount of tax payable under this section and every owner shall recover such tax from such passenger or person as the case may be. there are three more sub-sections to this section which need number detain us. it would be numbericed that the effect of s. 3 is that the passengers and the owners of goods are made liable to pay the tax to the owner of the public service motor vehicle and the latter is made liable to pay the tax to the state government and both these provisions act retrospectively by virtue of s. 1 3 . in other words the tax is levied on passengers and goods carried by the public vehicles and the machinery devised is that the tax would be recovered from the owners of such vehicles. section 4 requires the owners of public service motor vehicles to register their vehicles. under s. 5 security has to be furnished by such owners and returns have to be submitted under s. 6. section 7 deals with the procedure for the assessment of tax. section 8 provides for the payment of fixed amount in lieu of tax and under s. 9 provision is made for the payment and recovery of tax. section 10 deals with the special mode of recovery. section 11 deals with cases of transfer of public service motor vehicle and makes both the transferor and the transferee liable for the tax as prescribed by it. refund is dealt with by s. 12 and appeal revision and review are provided by ss. 13 14 and 15 respectively. under s. 16 power is given subject to such rules as may be made by the state government to the commissioner or the prescribed authority to secure the production inspection and seizure of accounts and documents and search of premises and vehicles. section 17 makes the commissioner and the prescribed authority public servants and section 18 deals with offences and penalties. section 19 deals with companypounding of offences. section 20 prescribes the usual bar to certain proceedings and section 21 refers to. the limitation of certain suits and prosecutions. section 22 companyfers power on the state government to make rules. section 23 is important. in effect it provides that the acts done under bihar act 17 of 1950 shall be deemed to have been done under this act. it reads thus - numberwithstanding any judgment decree or order of any companyrt tribunal or authority- a any amount paid companylected or recovered or purported to have been paid companylected or recovered as tax or penalty under the provisions of part iii of the bihar finance act 1950 bihar act xvii of 1950 as amended from time to time hereinafter referred to as the said act or the rules made thereunder during the period beginning with the first day of april 1950 and ending on the thirty-first day of july 1961 shall be deemed to have been validly levied paid companylected or recovered under the provisions of this act and b any proceeding companymenced or purported to have been companymenced for the assessment collection or recovery of any amount as tax or penalty under the provisions of the said act or the rules made thereunder during the period specified in clause a shall be deemed to have been companymenced and companyducted in accordance with the provisions of this act and if number already companypleted shall be continued and companynpleted of this act. in- accordance with the provisions there is a proviso to this section which is number relevant for our purpose. sections 24 and 25 deal with repeals and savings and section 26 provides that if any difficulty arises in giving effect to the provisions of the act - the state government may pass an order in that behalf subject to the limitations prescribed by the said section. that broadly stated is the scheme of the act. in order to appreciate the merits of the companytentions raised by mr. setalvad on behalf of the appellants it is necessary to specify clearly the limited character of the controversy between the parties in appeal. the appellants concede that the act in its prospective operation is perfectly valid. they also companycede that s.23 a which validates the acts done under the earlier act of 1950 is valid. it would be numbericed that apart from the general retrospective operation of the act for which a provision has been made by s.1 3 s. 23 itself makes a clear retrospective validating provision and it is number disputed that the acts validated by s.23 a have been properly validated. with regard to the validating provision contained in s. 23 b it has been urged that the said provision in so far as it refers to proceedings companymenced under the earlier act but number companypleted before the impugned act came into force is invalid. the rest of the provisions of s. 23 b are also number challenged. in other words it is number disputed that in its prospective operation the art has been validly passed by the bihar legislature exercising its legislative power under entry 56 in list ii of the seventh schedule of the companystitution. the argument however is that its retrospective operation prescribed by s. 1 3 and by a part of s. 23 b so companypletely alters the character of the tax proposed to be retrospectively recovered that it introduces a serious infirmity in the legislative companypetence of the bihar legislature itself. alternatively it is argued that the said retrospective operation is so unreasonable that it cannumber be saved either under art. 304 b or art. 19 5 and 6 . it is these two narrow points which call for our decision in the present appeals. in dealing with this companytroversy it is necessary to bear in mind some points on which there is numberdispute. the entries in the seventh schedule companyferring legislative power on the legislatures in question must receive the widest denumberation. this position is number disputed. entry 56 of the second list refers to taxes on goods and passengers carried by road or on inland waterways. it is clear that the state legislatures are authorised to levy taxes on goods and passengers by this entry. it is number on all goods and passengers that taxes can be imposed under this entry it is on goods and passengers carried by road or on inland waterways that taxes can be imposed. the expression carried by road or on inland waterways is an adjectival clause qualifying goods and passen gers that is to say it is goods and passengers of the said description that have to be taxed under this entry. nevertheless it is obvious that the goods as such cannumber pay taxes and so taxes levied on goods have to be recovered from some persons and these persons must have an intimate or direct companynection or nexus with the goods before they can be called upon to pay the taxes in respect of the carried goods. similarly passengers who are carried are taxed under the entry. but usually it would be inexpedient if number impossible to recover the tax directly from the passengers and so it would be expedient and companyvenient to provide for the recovery of the said tax from the owners of the vehicles themselves. that is why it is number disputed by mr. setalvad that in enacting a law under en 56 in respect of taxes imposed on passengers carried by road or on inland waterways it would be perfectly companypetent to the legislature to devise a machinery for the recovery of the said tax by requiring the bus operators or bus owners to pay the said tax. the other point on which there is numberdispute before us is that the legislative power companyferred on the appropriate legislatures to enact laws in respect of topics companyered by several entries in the three lists can be exercised both prospectively and retrospectively. where the legislature can make a valid law it may provide number only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. similarly there is numberdoubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. if a law passed by a legislature is struck down by the companyrts as being invalid for one infirmity or anumberher it would be companypetent to the appropriate legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. this position is treated as firmly established since the decision of the federal companyrt in the case of the united provinces v.mst. atiqa begum 1 . it is also true that though the legislature can pass a law and make its provisions retrospective it would be relevant to companysider the effect of the said retrospective operation of the law both in respect of the legislative companypetence of the legislature and the reasonableness of the restrictions imposed by it. in other words it may be open to a party affected by the provisions of the act to companytend that the retrospective operation of the act so companypletely alters the character of the tax imposed by it as to take it outside the limits of the entry which gives the legislature companypetence to enact the law or it may be open to it to companytend in the alternative that the restrictions imposed by the act are so unreasonable that they should be struck down on the ground that they companytravene his fundamental rights guaranteed under art. 19 1 f g . this position cannumber be and has number been disputed by mr. sastri who appears for the respondent vide the state of west bengal v. subodh gopal bose 2 and express newspapers private limited v. the union of india 3 . in view of the recent decisions of this companyrt mr. sastri also companycedes that taxing statutes are number beyond the pale of the companystitutional limitations 1 1940 f.c.r. 110. 2 1954 s.c.r. 587 626. 3 1954 s.c.r. 12 1390 prescribed by articles 19 and 14 and he also companycedes that the test of reasonableness prescribed by art. 304 b is justiciable. it is of companyrse true that the power of taxing the people and their property is an essential attribute of the government and government may legitimately exercise the said power by reference to the objects to which it is applicable to the utmost extent to which government thinks it expedient to do so. the objects to be taxed so long as they happen to be within the legislative companypetence of the legislature can be taxed by the legislature- according to the exigencies of its needs because there can be numberdoubt that the state is entitled to raise revenue by taxation. the quantum of tax levied by the taxing statute the companyditions subject to which it is levied the manner in which it is sought to be recovered are all matters within the companypetence of the legislature and in dealing with the contention raised by a citizen that the taxing statute contravenes art. 19 companyrts would naturally be circumspect and cautious. where for instance it appears that the taxing statute is plainly discriminatory or provides no procedural machinery for assessment and levy of the tax or that it is companyfiscatory companyrts would be justified in striking down the impugned statute as unconstitutional. in such cases the character of the material provisions of the impugned statute is such that the companyrt would feel justified in taking the view that in substance the taxing statute is a cloak adopted by the legislature for achieving its confiscatory purposes. this is illustrated by the decision of this companyrt in the case of kunnathet thathunni moopil nair state of kerala 1 where a taxing statute was struck down because it suffered from several fatal infirmities. on the other hand we may refer to the case of raja jagannath baksh singh v. state of uttar pradesh 1 where a challenge to the taxing statute on the ground that its provisions were unreasonable was rejected and it was observed that unless the infirmities in the 1 1961 3 s.c.r 77 2 1963 1 b.c.r. 220 impugned statute were of such a serious nature as to justify its description as a companyourable exercise of legislative power the companyrt would uphold a taxing statute. it is in the light of these principles of law which are number in dispute between the parties before us that we must proceed to examine the arguments urged by mr. setalvad in challenging the validity of the retrospective operation of the act. mr. setalvad companytends that one has merely to read the provisions of s. 3 3 to realise that the character of the tax has been companypletely altered by its retrospective operation. it would be recalled that s. 3 3 inter alia provides that every passenger carried by a public service motor vehicle shall be liable to pay to the owner thereof the amount of tax payable under the said sub-section because the scheme of the act is that the tax is paid by the passenger to the owner and by the owner to the state and both these provisions are retroactive. however in respect of passengers carried by the owner between 1.4.1950 and the date of the act how can the owner recover the tax he is number bound to pay to the state asks mr. setalvad ? prima facie the argument appears to be attractive but a closer examination would show that the difficulty which the owner may experiencein recovering the tax from the passengers will number necessarily alter the character of the tax. if the scheme of s. 3 for the levy and recovery of the tax is valid under entry 56 of list ii so far as future recoveries are concerned it is number easy to see how it can be said that the character of the tax is radically changed in the present circumstances because it would be very difficult if number impossible for the owner to recover the tax from the passengers whom he has carried in the past. the tax recovered retrospectively like the one which will be recovered prospectively still companytinues to be a tax on passengers and it adopts the same machinery for the recovery of the tax both as to the past as well as to the future. in this companynection we ought to bear in mind that the incidence of the tax should number be confused with the machinery adopted by the statute to recover the said tax. besides as we will point out later it is only during a companyparatively short period that the owners difficulties assume a significant form. stated generally it may number be unreasonable to assume that from the time when the act of 1950 was brought into force it was knumbern to all the owners that the legislature had imposed a tax in respect of passengers and -goods carried by them and since then and particularly after the amendment of 1951 they may have raised their fares and freights to absorb their -liability to pay the tax to the state. but apart from that it seems to us that the nature of the tax in the present case is the same both in regard to prospective and retrospective operations and so it is difficult to entertain the argument that the tax has ceased to be a tax on passengers and is therefore outside entry 56. the argument that the retrospective operation of the act is beyond the legislative companypetence of the bihar legislature must therefore be rejected. in this companynection we cannumber ignumbere the fact that prior to the passing of the impugned act there was in operation a similar statute since april 1 1950 which was struck down as unconstitutional on the ground of want of assent of the president. this aspect of the matter numberdoubt will have to be further examined in the context of the appellants case that tile retrospective operation of the act introduces a restriction which is unreasonable both under art. lb 1 f g and art. 304 b but it has numbervalidity in challenging the legislative competence of the bihar legislature in that behalf. we may in this companynection incidentally refer to some decisions of this companyrt where a similar argument was urged in regard to the retrospective operation of some acts. it appears that in those cases the argument proceeded on a distinction between direct and indirect taxes. it is well-knumbern that john stuart mill made a pointed distinction between direct and indirect taxation and this distinction was reflected in s. 92 11 of the british numberth america act which gave to the legislatures of the provinces exclusive power to make laws in relation to direct taxation within the province. numbersuch distinction can be made in regard to the legislative power conferred on the appropriate legislatures by the respective entries in the seventh schedule of our companystitution and so it is unnecessary for us to companysider any argument based on the said distinction in the present case. however this argument was urged before this companyrt in challenging the validity of some acts by reference to their retrospective operation. in the tata iron steel company limited v. the state of bihar 1 where this companyrt was called upon to examine the validity of the bihar sales tax act 1947 as amended by the amendment act of 1948 one of the points urged before this companyrt was that whereas sales-tax is an indirect tax on the companysumer inasmuch as the idea in imposing the said tax on the seller is that he should pass it on to his purchaser and companylect it from him the retrospective operation of the act made the imposition of the said tax a direct tax on the seller and so it was invalid. this argument was rejected. a similar objection against the retrospective operation of the madras general sales tax act 1939 as adapted to andhra by the sales tax laws validation act 1956 was rejected in the case m. p. v. sundararamier company v. the state of andhra pradesh 2 in m s. j. k. jute mills company limited v. state of uttar pradesh 3 the argument that the character of the sales-tax as enacted by the u. p. sales tax act 1948 was radically altered in its retrospective operation was likewise rejected. the same argument 1 1958 s.c.r. 13.551377. 2 1958 s.c.r 1422. 3 1962 2 s.c.r. 1. in respect of an excise tax raised before this companyrt in the case of m s. chhotabhai jethabhai patel company v. union of india 1 was for similar reasons rejected. the position therefore appears to be well settled that if in its essential features a taxing statute is within the legislative companypetence of the legislature which passed it by reference to the relevant entry in the list its character is number necessarily changed merely by its retrospective operation so as to make the said retrospective operation outside the legislative companypetence of the said legislature and so we must hold that the. challenge to the validity of the retrospective operation of the act on the ground that the provision in that behalf is beyond the legislative competence of the bihar legislature must be rejected. that takes us to the question as to whether the restriction imposed on the appellants right under art. 19 1 f add g by the retrospective operation of the act is reasonable so as to attract the provisions of art. 19 5 and 6 . the same question arises in regard to the test of reasonableness prescribed by art. 304 b . mr. setalvad contends that since it is number disputed that the retrospective operation of a taxing statute is a relevant fact to companysider in determining its reasonableness it may number be unfair to suggest that if the retrospective operation covers a long period like ten years it should be held to impose a restriction which is unreasonable and as such must be struck down as being unconstitutional. in support of this plea mr. setalvad has referred us to the observations 2 made by sutherland. tax statutes says sutherland may be retrospective if the legislature clearly so intends. if the retrospective feature of a law is arbitrary and burdensome the statute will number be sustained. the reasonableness of each retroactive tax statute will depend on the circumstances of each case. a statute retroactively 1 1962 supp. 2 s.c.r. 1. sutherland on statutes and statutory companystruction 1943 ed vol. 2 paragraph 2211 pp. 131-133. imposing a tax on income earned between the adoption of an amendment making income taxes legal and the passage of the income-tax act is number unreasonable. likewise an income-tax number retroactive beyond the year of its passage is clearly valid. the longest period of retroactivity yet sustained has been three years. in general income taxes are valid although retroactive if they affect prior but recent transaction. basing himself on these observations mr. setalvad companytends that since the period companyered by the retroactive operation of the act is between april 1 1950 and september 25 1961 it should be held that the restrictions imposed by such retroactive operation are unreasonable and so the act should be struck down in regard to its retrospective operation. we do number think that such a mechanical test can be applied in determining the validity of the retrospective operation of the act. it is companyceivable that cases may arise in which the retrospective operation of a taxing or other statute may introduce such an element of unreasonableness that the restrictions imposed by it may be open to serious challenge as unconstitutional but the test of the length of time companyered by the retrospective operation cannumber by itself necessarily be a decisive test. we may have a statute whose retrospective operation companyers at comparatively short period and yet it is possible that the nature of the restriction imposed by it may be of such a character as to introduce a serious infirmity in the retrospective operation. on the other hand we may get cases where the period companyered by the retrospective operation of the statue though long will number introduce any such infirmity. take the case of a validating act. if a statute passed by the legislature is challenged in proceedings before a companyrt and the challenge is ultimately sustained and the statute is struck down it is number unlikely that the judicial proceedings may occupy a fairly long period and the legislature may well decide to await the final decision in the said proceedings before it uses its legislative power to cure the alleged infirmity in the earlier act. in such a case if after the final judicial verdict is pronumbernced in the matter the legislature passes a validating act it may well companyer a long period taken by the judicial proceedings in companyrt and yet it would be inappropriate to hold that because the retrospective operation companyers a long period therefore the restriction imposed by it is unreasonable. that is why we think the test of the length of time companyered by the retrospective operation cannumber by itself be treated as a decisive test. take the present case. the earlier act was passed in 1950 and came into force on april 1 1950 and the tax imposed by it was being companylected until an order of injunction was passed in the two suits to which we have already referred. the said suits were dismissed on may 8 1952 but the appeals preferred by the appellants were pending in this companyrt until december 12 1960. in other words between 1950 and 1960 proceedings were pending in court in which the validity of the act was being examined and if a validating act had to be passed the legislature cannumber be blamed for having awaited the final decision of this companyrt in the said proceedings. thus the period companyered between the institution of the said two suits and their final disposal by this companyrt cannumber be pressed into service for challenging the reasonableness of the retrospective operation of the act. it is however urged that the retrospective operation of the act during the period companyered by the orders of injunction issued by the trial companyrt in the said two suits must be held to be unreasonable and the argument is that in regard to the said period the retrospective operation should be struck down. similarlyit is urged that the said retrospective operation should be struck down for the period between december 12 1960 when this companyrt struck down the earlier act and august 1 1961 when ordinance 11 of 1961 was issued. we do number think it would be appropriate in the present case to examine the validity of the retrospective operation by reference to particular periods of time companyered by it in the manner suggested by mr. setalvad and so we are number prepared to accept his argument that the retrospective operation of the act is invalid so far as the period between december 12 1960 when the earlier act was struck down by this companyrt and august 1 1961 when the ordinance was issued is companycerned. it would be realised that in such a situation there would always be some time lag between the date when a particular act is struck down as unconstitutional and the date on which a retrospective validating act is passed. besides the circumstances under which the orders of injunction were passed by the trial court cannumber be altogether ignumbered. mr. sastri companytends that the two suits filed by the appellants and the passengers and the owners of goods respectively disclose a common design and can be treated as friendly suits actuated by the same motive and we do number think that this companytention can be rejected as wholly unjustified. apart from it when the injunction was issued against the respondent in the appellants suit the appellants gave an undertaking in writing to pay the taxes partyable on the fares and freights as provided by the law in case their suit failed. as we have already seen their suit was dismissed by the high companyrt on may 8 1952 so that it was then open to the respondent to call upon the appellants to pay the taxes for the period covered by the orders of injuction and to require them to pay future taxes because the earlier act under which the taxes were recovered was held to be valid by the high companyrt. it is numberdoubt suggested by mr. setalvad that the spirit of the undertaking required that numberrecovery should be made until the final disposal of the proceedings between the parties. we do number see how this argument about the spirit of the undertaking can avail the appellants. as soon as their suit against the respondent was dismissed the respondent was at liberty to enforce the provisions of the act and the dismissal of the suit made it possible for the respondent to claim the taxes even for the period companyered by the order of injunction. we do number think that in the context the dismissal of the suit can legitimately refer to the final disposal of the appeal filed by the appellants before this companyrt. in any event having regard to the agencies of the two suits the nature of the orders of injunction issued in them and the character of the undertaking given by the appellants we do number think it would be possible to sustatain mr. setalvads argument that for the period of the injunction the restrospective operation of the act should be held to be invalid. in this companynection it would be relevant to refer to anumberher fact which appears on the record. along with the appellants is other bus owners had filed writ petitions challenging the validity of the act. these petitioners have number appealed to this companyrt presumably because their cases fall under the provisions of s. 23 a of the act. it is likely that they had paid the amounts and since the amounts paid under the provisions of the earlier act are number deemed to have been paid under the provisions of this act they did number think it worthwhile to companye to this companyrt against the decision of the high companyrt. apart from that it is number unlikely that other bus owners may have made similar payments and the appellants have therefore companye to this court because they have made numberpayments and so their cases do number fail under s. 23 a or may be their cases fall under s. 23 b . the position therefore is that the retrospective operation of s. 23 a b companyer respectively cases of payments actually made under the provisions of the earlier act and cases pending inquiry and the retrospective operation of s. 3 3 read with s. 1 3 only applies to cases of persons who did number pay the tax during the whole of the period or whose cases were number pending and it is this limited class of persons whose interests are represented by the appellants before us. having regard to the somewhat unusual circumstances which furnish the background for the enactment of the impugned statute we do number think that we companyld accept mr. setalvads argument that the retrospective operation of the act imposes restrictions on the appellants which companytravenue the provisions of art. 19 1 f g . in our opinion having regard to all the relevant facts of this case the restrictions imposed by the said retrospective operation must be held to be reasonable and in the public interest under art. 19 5 and 6 and also reasonable under art. 304 b . there is only one more point to which reference must be made. we have already numbericed that the high companyrt has rejected the argument urged on behalf of the state that the tax imposed by the act is of a companypensatory or regulatory character and therefore is valid. mr. sastri wanted to press that part of the case of the state before us. he urged that according to the majority decision of this companyrt in the case of the automobile transport rajasthan limited 1 it must number be taken to be settled that regulatory measures or measures imposing companypensatory taxes for the use of trading facilities do number companye within the purview of the restrictions companytemplated by article 301 and such measures need number companyply with the requirements of the proviso to art. 304 b of the companystitution. p. 1424 . on the other hand mr. setalvad has argued that this doctrine of companypensatory or regulatory or taxation which is mainly based on australian decisions cannumber be extended to the present case and he companytends that if the doctrine of regulatory or compensatory taxes is very 1 1963 1 s.c.r.

J U D G M E N T RAJENDRA BABU, J. LITTTTTTTJ In the wake of assassination of Smt. Indira Gandhi on October 31, 1984 there were several killings of Sikhs in Delhi and other parts of the companyntry between October 31, 1984 till November 1984 which involved arson, looting and murder. A Committee was companystituted headed by Justice R.N. Misra of this Court which made an inquiry and reported that Sikhs killed in those riots were 3874 in Delhi , 127 in Kanpur and 69 in Bokaro. Civil Writ Petition No. 1429 of 1996 titled Bhajan Kaur v. Delhi Administration was filed in the High Court of Delhi for paying companypensation to the dependents of those killed in the riots after the assassination of Smt. Indira Gandhi as the State had a duty to protect the life of its citizens and the State ought to pay companypensation thereof. The High Court of Delhi by its order dated July 5, 1996 held that in the expanded meaning attributed to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should number be jeopardised or endangered. If in any circumstance the State is number able to do so, then it cannot escape the liability to pay companypensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution. The High Court, therefore, directed payment of a sum of Rs. 2 lakhs with interest and also made a general direction that this direction should apply to similar cases also. Thereafter, this writ petition has been filed seeking to extend the benefit of the judgment in Bhajan Kaur v. Delhi Administration supra to the entire companyntry and for certain other reliefs. It is brought to our numberice that the number of persons killed in each of the States is as under Nos. Killed State 3874 Delhi Rajasthan Orissa Haryana Himachal Pradesh Bihar P. Uttar Pradesh Maharashtra 4473 Certain amounts have been paid to some of the dependents of those killed. Certain claims have been made in para 13.3 of this writ petition setting out certain facts which need to be verified. After this petition was filed numberices were issued to the Governments of different States and they have filed responses in each one of those cases stating the steps that have been taken by them in cases where there had been death or other kinds of violence resulting in injuries or loss of property. But in the nature of the circumstances of the case, it is very difficult for us to extend the decision of the High Court of Delhi in Bhajan Kaur v. Delhi Administration supra to all the States without making a detailed examination of the circumstances arising in each case. Such examination cannot be done by us. Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad, and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in its jurisdiction by treating this writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts.

With Civil Appeal No. 2207 of 1982 J U D G M E N T SEN, J. The appellant is a manufacturer of safety matches. During the period relevant For the assessment years 1957-58 to 1965-66, the appellant sold matches in the companyrse of inter-State trade and companymerce for which sales tax was charged under the Central Sales Tax Act. The assessment orders were challenged by the petitioner by filing writ petition before the High Court. The ground taken was that Central Sales Tax was levied on turnover which included excise duty. No Central Sales Tax companyld be levied on excise duty. The provisions of subsections 2 , 2A and 5 of Section 8 of the Central Sales Tax Act were ultra vires the Constitution of India. Claims for refund of the tax companylected by the Sales Tax Authority were also made. Several other similar writ petitions were heard by the High Court along with the appellants case. The High Court by the judgment dated 30th January, 1968 allowed the writ petitions in the case of Larsen and Toubro v. Joint Commercial Tax Officer, 1967 20 STC 150. Following that decision, the High Court allowed the writ petitions filed by the appellant and the other writ petitioners. The Sales Tax Authority did number prefer any appeal in the case of the appellant, but went up in appeal in another case The State of Madras v. N.K. Nataraja Mudaliar, AIR 1969 SC 147 in which this Court held that the provisions of sub-sections 2 , 2A and 5 of Section 8 of the Central Sales Tax Act were valid. Is, however, held that tax on excise duty was illegal and affirmed the decision of the High Court on this point. The case of the appellant is that even after the judgment of the Madras High Court. the Commercial Tax Officer did number refund the amount of tax illegally companylected even though specific direction had been given by the High Court to that effect. The position after the decision of this Court in the case of The State of Madras v. N.K. Nataraja Mudaliar, supra was that levy of sales tax companyld number be said to be invalid because provisions of sub-sections 2 , 2A and 5 of Section 8 of the Central Sales Tax Act were ultra vires the Constitution of India. In disposing of the appeal, Shah, J. as His Lordship then was directed The appeal will be allowed and the order passed by the High Court declaring the provisions of Sections 8 2 , 8 2A and 8 5 ultra vires must be set aside. The petition out of which this appeal arises was one of 8 group of petitions filed before the High Court. Against orders passed in favour of the other assessees the State has number preferred appeals. The amount involved in the claim is small The State apparently has approached this Court with a view to obtain a final determination of the important question which was raised in the petitions filed before the High Court. We therefore direct that there will be numberorder as to companyts in this Court and in the High Court. The other reason for which the assessments were set aside was inclusion of excise duty in the companyputation of turnover. There was a companytroversy as to how the turnover under the Central Sales Tax Act should be companyputed. Under the Madras General Sales Tax Act, 1959 and the rules, as it stood at the material time, provisions had been made for deduction of excise duty in the companyputation of chargeable turnover. Madras High Court held that the quantum of turnover for the purpose of levy of Central Sales Tax had to be made in the same manner by excluding the excise duty paid on the goods sold. In the case of State of Madras v. N.K Nataraja Mudaliar, supra , this Court held- If under the Madras General Sales Tax Act in companyputing the turnover the excise duty is number liable to be included and by virtue of section 9 1 of the Central Sales Tax Act has to be levied in the same manner as the Madras General Sales Tax Act, the excise duty will number be liable to be included in the turnover . . . We are of the view that in the matter of determining the taxable turnover the same rules will apply by virtue of Section 9 1 of the Central Sales Tax Act, whether the tax is to be levied under the Central Sales Tax Act or the General Sales Tax Act. The Central Sales Tax Amendment Act, 1969 brought about a number of changes in the Central Sales Tax Act, 1956. The definition of turnover in Section 2 j was modified and the wording of Section 9 was radically altered. The new provisions were deemed always to have been substituted. This amendment was effected with a view to put an end to the companytroversy whether turnover should be companyputed in accordance with the provisions of the State Sales Tax law or number. This amendment was necessary to get over the view expressed by this Court in N.K. Nataraja Mudaliars case that the Central Sales Tax had to be levied in the same manner as provided in the Madras General Sales Tax Act When the Central Sales Tax Act was examined by the Madras High Court in the case of Larsen and Toubro and this Court in the case of N.K. NataraJa Mudaliar, turnover had been defined by the Central Sales Tax Act in Section 2 j to mean the aggregate of sale prices received and receivable by him in respect of sales of any goods in the companyrse of inter-State trade or companymerce made during Any prescribed period and determined in the prescribed manner. By Section 2 of the Central Sales Tax Amendment Act, 1979 28 of 1969 , the words and determined in a prescribed manner were substituted by the words and determined in accordance with the provisions of this Act and he rules made thereunder. This amendment was given effect with retrospective effect from the date on which the Central Sales Tax Act ame into force. In other words, the very basis of the law on which the judgment in N.K. Nataraja Mudaliars was pronounced was removed from the statute book . The scope of the validating provision of the Amending Act of 1969 must be viewed in the background of these facts The amending Act, after amending the aforesaid provisions of the Central Sales Tax Act and various other provisions, went on to validate all assessments, reassessments, levy or companylection of any tax made numberwithstanding anything companytained in the judgment, decision, decree or order of any companyrt or other authority to the companytrary. The result of the various provisions of the Amending Act and in particular the validating provision was to change the law with retrospective effect and to impart validity to all assessments made under the Central Sales Tax Act which had been struck down by the judgment in the case of Larsen and Toubro and all other orders passed pursuant to that judgment. Mr. Vaidyanathan has strenuously companytended that the legislature cannot nullify any judgment of the companyrt. In the instant case, the assessment made under the Central Sales Tax Act had been quashed by the Madras High Court. This was one of a large number of writ petitions which were heard by the Madras High Court. Although in the case of N.K. Nataraja Mudaliar supra , an appeal was preferred to the Supreme Court and the judgment was reversed, in the case of the appellant the judgment was number questioned and was allowed to stand. Therefore, it is in full force and has to be respected as valid and binding. This judgment companyld be reversed by the Supreme Court, but companyld number be nullified by legislature by an Act. In support of this companytention he has relied on a judgment of this Court in the case of Madan Mohan Pathak v. Union of India Ors., 1978 3 SCR 334, In that case, a dispute between workers union and the Life Insurance Corporation was settled by an agreement for payment of cash bonus at the rate of 15 of gross wages. The settlement was valid for four years from 1st April, 1973 to 31st March, 1977. There was some dispute about the implication of this settlement and on 21st May, 1976 on a writ petition, the Calcutta High Court passed an order recognizing the right of the employees to payment of bonus for the year 1975-76 which had become payable along with the salary in April, 1976. The Calcutta High Court ordered that it must be paid to the employees. On 29th May, 1976 the Life Insurance Corporation Modification of Settlement Act, 1976 was passed by the Parliament denying the employees the right which had been companyferred by the settlement, approved by the Central Government, acted upon by actual payment of bonus to the employees and finally recognized as a right protected by Articles 19 1 f and 31 1 of the Constitution by a decision of the Calcutta High Court on 21st May, 1976. It was numbered in the judgment of Beg, C.J., that the Statement of Objects and Reasons of the Act disclosed that the purpose of the Act was to undo the settlement which had been arrived at between the Corporation and Class-III and Class-IV employees on January 24 and January 26, 1974. Beg, J., was of the view that it would, in any event, be unfair to adopt legislative procedure to undo such a settlement which had become the basis of a decision of a High Court. Even if legislation can remove-the basis of a decision it has to do it by an alteration of general rights of a class but number by simply excluding two specific settlements between the Corporation and its employees from the purview of the section 18 of the Industrial Disputes Act, 1947, which had been held to be valid and enforceable by a High Court. Such Selective exclusion companyld also offend Article 14. Strong reliance was placed by Mr. Vaidyansthan on the following observation of Beg, C.J. - I find myself in companyplete agreement with my learned brother Bhagwati that to give effect to the judgment of the Calcutta High companyrt is number the same thing as enforcing a right under Article 19 of the companystitution becomes liked up with the enforceability of the Judgment. Nevertheless, the tow companyld be viewed as separable sets of rights. If the right companyferred by the judgment independently is sought to be set aside, section 3 of the Act, would in, my opinion, be invalid for trenching upon the judicial power. Mr. Vaidyanathan has argued that whatever may be the effect of the validation provision of Central Sales Tax Amendment Act of 1969, it companyld number nullify the judgment pronounced by the Madras High Court whereby the assessment order had been quashed. Before examining this argument of Mr. Vaidyanathan, the majority judgment in Madan Mohan Pathaks case supra will have to be read and properly understood. The Life Insurance Corporation Modification of Settlement Act, 19?6 was an Act to alter the settlement which had been arrived at between the Corporation and its class-III and Class-IV employees on 24th January, 1974 under the Industrial Disputes Act, 1947 and which was in force upto 31st March, 1976. The Act did number purport to change the law which formed the basis of the judgment of the Calcutta High Court in any manner. The Act did number companytain any clause that it would be enforced numberwithstanding anything companytained in any judgment to the companytrary. The majority judgment. which was delivered by Justice Bhagwati, J. as His Lordship then was , highlighted this-aspect. Bhagwati,J. observed- It is significant to numbere that there was numberreference to the judgment of the Calcutta High Court in the Statement of Objects and Reasons, number any number-obstante clause referring to a judgment of a companyrt in section 3 of the impugned Act The attention of Parliament does number appear to have beer drawn to the fact that the Calcutta High Court had already issued a writ of mandamus companymanding the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976. It appears that unfortunately the judgment of the Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement in so far as they relate to payment of annual cash bonus to Class III and Class IV employees shall number have any force or effect and shall number be deemed to have had any force or effect from 1st April, 1975. But the writ of mandamus issued by the Calcutta High Court directing the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year 1st April, 1975 to 31st March, 1976 was companycerned, it became crystalized in the judgment and thereafter they became entitled to enforce the writ of mandamus granted by the judgment and number any right to annual cash bonus under the settlement. This right under the judgment was number sought to be taken away by the impugned Act. The judgment companytinued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus to Class III and Class IV employees for the year 1st April, 1975 to 31st March, 1976 in obedience to the writ of mandamus. After referring to the decision of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, 1970 1 SCR 388, Bhagwati, J. pointed out that in that case validity of Gujarat Imposition of Taxes by Municipalities Validation Act, 1963, altered the very basis of the law on which this Courts judgment in Patel Gordhandas Hargovindas Municipal Commissioner, Ahmedabad, 1964 2 SCR 608, was pronounced. Not only substantive provisions of the Act were altered but Section 3 of the Validation Act provided that numberwithstanding anything companytained in any judgment, decree or order of a companyrt or tribunal or any other authority, numbertax assessed or purported to have been assessed by the municipality on the basis of capital value of a building or land and imposed, companylected or recovered by the municipality at any timebefore the companymencement of the Validation Act shall be deemed to have invalidly assessed or imposed or companylected or recovered and the imposition or companylection of the tax so assessed shall be valid and shall be deemed to have always been valid and shall number be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land was number authorized by law and accordingly any tax so assessed before the companymencement of the Validation Act and leviable for a period prior to such companymencement but number companylected or recovered before such companymencement may be companylected or recovered in accordance with the relevant municipal law. After referring to the provisions of the Act, Bhagwati, J. observed It is difficult to see how this decision given in the companytext of a validating statute can be of any help to the Life Insurance Corporation. Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is number a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. Krishna Iyer and Desai, JJ. agreed with the judgment of Justice Bhagwati, Chandrachud, Fazal Ali and Shinghal, JJ. observed- We agree with the companyclusion of brother Bhagwati but prefer to rest our decision on the ground that the impugned Act violates the provisions of Article 31 2 and is, therefore, void. We companysider it unnecessary to express any opinion on the effect of the judgment of the Calcutta High Court in W.P. 371 of 1976. Therefore, the majority view appears to be that if a judgment is pronounced by a companyrt and the effect of that judgment is sought to be taken away by legislature by passing an Act without altering the statute on the basis of which the judgment was pronounced, then such legislation will number nullify the effect or force of the judgment pronounced by a companyrt in any manner. The statute being what it was, the judicial interpretation of the statute companyld number be held to be erroneous by legislative imprimatur, but if the statute itself was amended retrospectively so that the very basis of the judgment disappeared, then it companyld number be said the judgment was still in force and will have to be given effect to even though the legislature had specifically laid down that the amended law will operate numberwithstanding any judgment or decision or decree by the companyrt to the companytrary. In fact, that is how the judgment of Shri Prithvi Cotton Mills Ltd. understood and explained . In the instant case, after this Courts decision in K. Nataraja Mudaliars case the legislature has defined turnover in a new manner and has also amended certain other provisions of the Act which formed very basis of the Madras Judgments in the case of Larsen Toubro and this Courts judgment in the case of N.K. Nataraja Mudaliar. Therefore, we are unable to uphold the companytention of Mr, Vaidyanathan that the Judgment of the Madras High Court in the assessees own case must be held to be in full force in spite of the Amendment Act of 1969. The legislature ordinarily cannot reverse a decision of 8 companyrt of law given in exercise of judicial power. A settlement between the management and the employees under the Industrial Disputes Act cannot be declared by the legislature invalid and number enforceable even after a High Court had declared the settlement as valid and binding between the parties. This is what was sought to be done in Madan Mohan Pathaks case supra and this Court held that it was number permissible But if a High Court quashes several assessment orders interpreting a taxing statute in a certain certain manner and that interpretation is by a subsequent judgment of the Supreme Court and the statute itself is amended as e result of which the law on the basis of which the High Courts judgment was given is drastically altered, in such a situation, it is permissible for the legislature, by a Validation Acts to declare the assessments as valid and binding numberwithstanding the judgment of the High Court to the companytrary. The principle to be applied in cases like this was stated by Hidayatullah, C.J., in the case of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, 1970 1 SCR 388- When a legislature sets out to validate a tax declared by a companyrt to be illegally companylected under an ineffective or invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important companydition is that the legislature must possess the power to impose the tax, for if it does number, the action must ever remain ineffective and illegal. Granted legislative companypetence it is number sufficient to declare merely that the decision of the companyrt shall number bind, for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A Courts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. In Shri Prithvi Cotton Mills case supra , the assessment years involved were 1961-62, 1962-63 and 1963-64. Broach Borough Municipality imposed a purported rate on lands and buildings at a certain percentage of the capital value. The assessment lists were published and tax was imposed on the basis of capital value of the property. A number of writ petitions were filed for quashing the assessments. During the pendency of the writ petition, a Validation Act was passed which was also challenged by amending the writ petition. The Validation Act was passed because of the decision of this Court in the case of Patel Gordhandas Hargovindas v. The Municipal Commissioner, Ahmedabad, AIR 1963 SC 1742 1964 2 SCR 608. In that case this Court struck down the municipal tax levied as a percentage of the capital value of the property. The assessments were declared ultra vires. The Validation Act of 1963 redefined rate and companyverted the municipal tax as a rate on lands and buildings. In the case of Shri Prithvi Cotton Mills supra , Hidayatullah, J., pointed out that the legislature by legislative enactment retrospectively imposed the tax by giving to the expression rate a new meaning and while doing so it put out of action the effect of the decisions of the companyrts to the companytrary. This principle laid down in Shri Prithvi Cotton Mills, case has number been overruled or doubted by the majority view in the case of Madan Mohan Pathak supra . In the instant case also. the High Courts judgment in Larsen and Toubros case supra , in so far as it declared certain provisions of the Sales Tax Act ultra vires, was reversed in the case of N.K. Nataraja mudaliar supra . The includibility of the excise duty element in the turnover was validated by the statutory amendments with retrospective effect. Therefore, the very basis on which the assessments sere quashed in the case of Larsen and Toubro disappeared. The legal basis of the decisions following the Larsen and Toubros case including that case also had disappeared by judicial pronouncements and legislative enactment. The validating provision of the 1969 Act, to borrow the language of Hidayatullah, C.J., has put out of action the effect of the decision of the High Court in this case. The field is number occupied by the judgment of this Court in N.K. Natraja Mudaliars case supra and the provisions of the Central Sales Tax Act as amended by the Act of 1969. We shall number examine some of the other cases which were cited on the question of the scope of various Validation Acts passed by the legislature from time to time. The case of A.V. Nachane v. Union of India 1982 2 SCR 246, was a sequel to the decision in the case of Madan Mohan Pathak, where this Court had directed the Union of India and Life Insurance Corporation to forbear from implementing the provisions of the Validation Act of 1976 and to pay annual cash bonus for the years in question to Class III and Class IV employees in accordance with the settlements. On March 31, 1978 the Corporation issued a numberice under Section 19 2 of the Industrial Disputes Act declaring its intention to terminate the settlement on the expiry of two months from the date of the numberice. Another numberice was issued to effect a change in the companyditions of service applicable to the workmen. The validity of the aforesaid two numberices and the companysequential numberification issued to nullify any further claim to annual cash bonus was challenged by a writ petition in the Allahabad High Court. The writ petition was allowed. On appeal this Court pointed out that the settlements of 1974 companyld only be superseded by a fresh settlement. It was held that in view of the decision in Madan Mohan Pathak case supra . the amended rules, in so far as they sought to abrogate the terms of 1974 settlement relating to bonus, companyld only operate prospectively. This judgment does number advance the case of the appellant. It merely reiterates the principles laid down in the case of supra . In the case of Janpada Sabha, Chhindwar v. The Central Provinces Syndicate Ltd., 1970 3 SCR 745, the question was raised as to the validity of enhancement of cess on extraction of companyl. The rate of cess originally was at 3 pies per ton This was later enhanced to 4 pies per ton, in 1946 to 7 pies and in 1947 to 9 pies. The enhanced levies were challenged in this Court. It was held that the increased levies were number valid because previous sanction of the local Government had number been obtained. The State Legislature thereafter passed Act in 1964 by which a Board Janapada Sabha was companystituted and cess was defined to mean a cess imposed by the Board or its successor body. Section 3 1 of the Act companytained a validating provision that numberwithstanding any judgment of any companyrt, cesses imposed, aisessed or companylected by the Board shall be deemed to be, and to have always been, validly imposed, assessed or companylected. When the case came to this Court, the inadequacy of the Amending Act was pointed out in the following words But the Act in terms is limited in its application to the Independent Mining Local Board, Chhindwara, and its successor body the Janapada Sabha, Chhindwara companystituted under Act 38 of 1948, and only in respect of the three numberifications specified in the Schedule. Obviously the Act limited to one local Board in its application and to certain specific numberifications cannot operate to repeal the clause insofar as it applied to other Boards. The nature of the amendment made in Act 4 of 1920 has number been indicated. Nor is there anything which enacts that the numberifications issued without the sanction of the State Government must be deemed to have been issued validly under s. 51 2 without the sanction of the Local Government This case does number lay down that after a judgment has been pronounced on the basis of an Act, the provisions of that Act cannot be amended so as to cure the defect pointed out in the judgment retrospectively. The effect of the Amending Act of 1969 is number to over rule a judgment passed by a companyrt of law, which the legislature cannot do What the legislature can do is to change the law on the basis of which the judgment was pronounced retrospectively and thereby nullify the effect of the judgment. When the legislature enacts that numberwithstanding any judgment or order the new law will operate retrospectively and the assessments shall be deemed to be validly made on the basis of the amended law, the legislature is number declaring the judgment to be void but rendering things or acts deemed to have been done under amended statute valid numberwithstanding any judgment or order on the basis of the unamended law to the companytrary. The validity to the assessment orders which had been struck down by the Court, is imparted by the Amending Act by changing the law retrospectively. In the case of P.S. Mohal v. Union of India 1984 3 SCR 847, certain seniority rule of Government of India came up for companysideration. In the case of A.K. Subraman v. Union of India 1975 2 SCR 979, a direction had been given by this Court to the government of India to amend and recise the seniority list in a certain manner. The government instead of companyplying with this direction framed Rules 2 ii and 2 vi by which a totally different rule of seniority was framed. This was companytrary to the direction given in A.K. Subramans case. This Court pointed out that A.K. Subramans case was number a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by that judgment and validate such impost or tax, But it is a decision giving effect to the right of the Executive Engineers promoted form the grade of Assistant Engineers to have their inter se seniority with Executive Engineers promoted form the grade of Assistant Executive Engineers determined on the basis of rule of length of companytinuous officiation by issue of a writ directing the Government of India to amend and revise the seniority list in accordance with such rule of seniority. Far from supporting the companytention of the appellant, this decision companypletely goes against the argument advanced by the appellant. This Court clearly laid down that if an impost or tax is declared to be invalid, a validation statute can remove the defect pointed out by the judgment and validate such impost or tax. This is precisely what has happened in the instant case. The provisions of the Act which were declared ultra vires in the case of Larsen and Toubro have been held to be valid by this Court in the case of N.K. Nataraja Mudaliar supra Includibility of excise duty in turnover was also specifically provided retrospectively by the amendments to the various provisions of the Central Sales Tax Act by the Amendment Act of 1969 In the case of Bhubaneshwar Singh v. Union of India, 1994 6 SCC 77, a Bench of three judges to which on of us P. Singh,J was party, held The Validating Acts are enacted to validate the action taken under the particular enactments by removing the defect in the statute retrospectively because of which the statute or the pert of it had been declared ultra vires. The exercise of rendering ineffective the judgments or orders of companypetent companyrts by changing the very basis by legislation is a well-known device of validating legislation. Such validating legislation which removes the cause of the invalidity cannot be companysidered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a companyrt cannot be made valid by a Validating Act by merely saying so unless the defect which has been pointed out by the companyrt is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the companyrt under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the companyrt cannot be Ignored. In that case Bhubaneshwar Singh, the petitioner, was the owner of a companying companyl mine which had been taken over by the Central Government. He filed on application under Article 226 of the Constitution alleging that the Custodian had debited the expenses for raising companyl to his account but had number given him credit for the price of the companyl raised which was lying in stock on the date when the companyl mine vested in the Central Government, The High Court allowed the writ petition holding that the petitioner was the owner of the companyl mine and was entitled to credit for the stock of companyl lying unsold as on 30.4 1972. A direction was given to recast the account and make certain payments to the petitioner. The Special Leave Petition against that judgment was dismissed by this Court by a reasoned order. Whereafter, by the Amendment Act of 1976, Coking Coal Mines Nationalization Act, 1972 was amended with retrospective effect. The question before this Court was whether by introduction of sub-section 2 to Section 10 of the Amending Act with retrospective effect, the respondents were absolved of their liability and were exonerated from the responsibility of companyplying with the direction given by the High Court in the earlier writ petition filed on behalf of the writ petitioner. It was held that the amendments which had been introduced retrospectively had taken away the substratum of the claim made on behalf of the petitioner. This Court held since the Validation Act had cured the lacunae or defect pointed out by the High Court in its earlier decision by introduction of sub-section 2 of Section 10 with retrospective effect, it shall be deemed that companypensation had been paid even for the stock of unsold companye lying on the date prior to the appointed day. In the case of S.R. Bhagwat v. State of Mysore, 1995 6 SCC 16, a Bench of three Judges held that a judgment which had attained finality and was binding upon the State companyld number be overruled by any legislative measure. In that case by an interpretation of the relevant service law the High Court had given certain benefits to the writ petitioners by issuing a writ in the nature of mandamus. That order of the High Court was sought to be nullified by enactment of a new statute. The Court held that this was impermissible because the High Court had number struck down any legislation which companyld be re-enacted after removing the defect retrospectively. In other words, it was recognized by this Court that in a case where provisions of a statute were declared inadequate or ultra vires, it was open to legislature to remove the defect retrospectively so as to cure the defect and make the statute valid. What has happened in this case is that a large number of writ petitions were dismissed by the High Court on the basis of its decision in the case of Larsen and Toubro as result of these decisions. a large number of assessment orders under the Central Sales Tax Act were set aside. It was held in the case of Larsen and Toubro certain provisions of the Act were ultra vires and in any event excise duty companyld number be included in the assessees turnover for the purpose of levy of Central Sales Tax. The main basis of the High Courts judgments disappeared when the Supreme Court held that the impugned provisions of the Central Sales Tax Act which had been declared ultra vires by the Madras High Court were validly enacted. The other defect which relates to the includibility of excise duty in the turnover of an assessee was cured retrospectively by amending the provisions of the Central Sales Tax Act. The new provisions introduced by the Amending Act were deemed to have companye into effect retrospectively Section 9 of the Amending Act declared all assessments made upto 9th January, 1969 valid and binding. There is numberhing in the long line of decisions cited by Mr. Vaidyanathan to suggest that the legislature companyld number take such a step until and unless the judgments were specifically reversed by this Court. This argument is number tenable having regard to the principles of law laid down in the case of Shri Prithvi Cotton Mills supra , which have been reiterated in the subsequent judgments of this Court. This is number a case of passing a legislation trying to nullify the interpretation of 19 given in the judgment of a companyrt of law. This is a case of changing the law itself on the basis of which the judgment was pronounced holding that the assessment orders were erroneous in law. The next companytention of Mr. Vaidyanathan is that, even after the Act of 1969 was passed, the High Court passed an order in the companytempt application, directing the State to pay the disputed amount to the appellant and that order was carried out. The respondents companyld have but did number take shelter behind the Amendment Act of 1969 The special leave petition filed against that order was dismissed by this Court. Therefore, this is a case of res judicata and the respondent companyld number number raise this point at this stage by a fresh proceeding. The appellant has number been able to cite any decision to show that a direction given in a companytempt petition can operate as res judicata in a suit. In the companytempt petition the only issue was whether the companyrts order in the writ petition was carried out or number. If the order of the writ companyrt was number carried out, the companytempt companyrt was bound to pass suitable orders to ensure obedience to the order of the companyrt. The question of companyrectness or validity of the judgment passed on the writ petition companyld number be raised in a companytempt proceeding. No question of res judicata arises in such a case. Be that as it may, the petitioner was successful in getting an order of payment on the companytempt petition. We are unable to uphold the companytention that merely because an order was passed in the companytempt proceeding to make payment, the respondent is estopped from claiming the amount of tax raised by an assessment order validated by the Act of 1969. If this argument is accepted, strange result will follow. The assessment order will remain valid. That numberice of demand raised pursuant to the assessment order will remain intact and in force, but it will number be open to the Department to realise the amount of tax merely because of the order passed in the companytempt proceeding. The writ companyrts order had to be carried out, which is why the refund order was passed in the companytempt proceeding. This direction to refund the amount of tax already companylected was given only because the assessment orders had been set aside by the writ companyrt. But, when the assessment orders were validated by passing the Amendment Act of 1969 with retrospective effect, the tax demand became valid and enforceable. The tax demand is a debt owed by an assessee which can be realised by the State in accordance with law. Merely because the amount of tax which had been realised earlier was directed to be refunded by companyrts order on the finding that the assessment order was invalid, will number preclude the State from realizing the tax due subsequently when the assessment order was validated by the Amending Act of 1969. The order passed in the companytempt proceeding will number have the effect of writing off the debt which is statutorily owed by the assessee to the State. The State has filed a suit for recovery of this debt. Unless it can be shown that the debt does number exist or is number illegally due, the companyrt cannot intervene and prevent the State from realizing its dues by a suit. All that the Department has done in this case is to bring a suit to recover the Amount of tax due and payable to it as a result of what must number be treated as a valid assessment order. It is needless to speculate as to what would have been the position, had the Amending Act been produced before the companyrt in the companytempt case. But, in our view, in the companytempt proceeding the companyrt was only endeavoring to ensure that the order of refund passed by the writ companyrt was carried out. In the companytempt jurisdiction the companyrt was number really companycerned with the merit of the case. It is also to be numbered that the vires of the Amendment Act of 1969 has number been questioned by the appellant by filing any substantive application. The effect of the Amending Act is to impart validity to those assessment orders which had been struck down by the High Court. If the assessment orders are number held to be valid, the tax demands raised in the assessment orders are still enforceable. What the State of Tamil Nadu is seeking to do is to enforce these demands. Merely because taxes which had been realized earlier had been refunded under an order passed on a companytempt petition, the respondent is number debarred from realizing the demands which are number deemed to be valid and subsisting. Therefore, in our view, the appeal has numbermerit. The Department is entitled to recover the amount refunded to the appellant pursuant to the direction given in the companytempt proceeding. The appeal is dismissed.

K. SIKRI, J. Leave granted. In a motor accident, the appellant herein suffered physical injuries. It happened on July 08, 2006 when the appellant was going on a scooter to Gram Pendri in the State of Chhattisgarh. When he reached near Gram Pendri, a Hyundai Getz car bearing Registration No. MH 12 CR 6917, driven by respondent No.1, hit the scooter, as a result of which the appellant fell down and sustained fractures on both the legs, thereby suffering permanent disability to some extent. He filed claim for companypensation against the respondents before the Motor Accidents Claims Tribunal MACT , Rajnandgaon, Chhattisgarh. The MACT, vide award dated May 05, 2009, granted him companypensation in the sum of ?5,35,227, under the following heads Head Amount in Rs. Medical Transport Expenses - 3,10,227 Loss of Income - 1,00,000 Mental Physical agony - 30,000 Removal of rod inserted in - 25,000 right leg Permanent disability to some - 70,000 extent TOTAL - 5,35,227 Not satisfied with the quantum of companypensation, the appellant approached the High Court by way of appeal under Section 173 of the Motor Vehicles Act, 1988 for short, the Act . The High Court has, vide impugned judgment, enhanced the companypensation to ?6,35,000. The High Court has number awarded companypensation under different heads but has deemed it proper to award lump sum companypensation in the aforesaid amount. Relevant discussion in this behalf can be traced to paras 8 and 9 of the impugned judgment, which reads as under We have gone through the evidence adduced by the claimant on the issue of injury sustained by him. In our opinion, taking into companysideration the nature of injury, the permanent disability occurred on the body of the appellant claimant to some extent, as a result of which he claims to be number as fit as he was prior to accident in his day-to-day work, resulting in reducing his capacity to do some extent of work, the expenditure incurred in receiving medical treatment in actual, the loss and mental pain suffered due to his involvement in accident we companysider it proper to enhance in lump sum the companypensation from Rs.5,35,227/- to Rs.6,35,000/-. In other words, in our view, the claimant is held entitled for a total sum of Rs.6,35,000/- by way of companypensation for the injuries sustained by him. In our companysidered opinion, due to injuries in both legs which is also duly proved in evidence by the claimant and his doctor, he cannot freely move and attend to his duties. His movements are restricted to a large extent and that too in young age. It is for all these reasons, we feel that the Tribunal had awarded a less companypensation under this head and hence, some enhancement under the head of pain and suffering and also under the head of permanent partial disability and loss of earning capacity is called for. This enhancement figure is arrived at taking into companysideration all relevant factors. The appellant is number satisfied with the aforesaid approach and the manner in which the companypensation is awarded. According to him, had the Court applied proper provision and principles laid down under the Act, the appellant would have been entitled to much more companypensation. We may state, at the outset, that the MACT recorded a specific finding that the accident took place due to rash and negligent driving of car by respondent No.1 which hit the scooter of the appellant. Respondent No.1 did number challenge the finding of the MACT and, therefore, this aspect has attained finality and we need number go into the same. The dispute, therefore, pertains only to the quantum of the companypensation that has to be awarded. Few facts relevant for resolving the dispute, which appear on the record, are as under At the time of the accident, the appellant was aged about 30 years. He was working as a Chartered Accountant. The appellant had produced evidence to the effect that he had worked as a Chartered Accountant for various institutions for which he was paid professional fee. He had produced statements in this behalf Exhibits P-195 to P-208 and on that basis he claimed that his monthly income was ?34,600. He also proved on record the income tax return for the year 2006-2007 Exhibit P-194 . The certificates which were produced by the appellant showing the professional fee which he had received was number accepted by the MACT on the ground that he had started the business in the month of March 2006 and there was enough professional companypetition in the said field. Moreover, the person issuing the certificate had number been produced. On this basis, the Tribunal assessed the monthly income of the appellant at ?10,000. Insofar as injuries suffered by the appellant in the said accident are companycerned, he had stated that his health had impaired drastically and lungs infected because of which he was admitted in the Intensive Care Unit and he was kept on ventilator and was operated thrice. He had problem in climbing stairs, running, trouble of back while sleeping, etc. A rod is planted in his leg. Because of all this he has suffered 70 permanent disability, apart from mental and physical agony and the said disability is going to give him frustration and disappointment towards life. He pleaded that this disability has affected his efficiency in work as well resulting in loss of future income as well. As already numbericed above, the MACT granted him companypensation by reimbursing expenses incurred towards treatment and transportation, loss of income, mental and physical agony and expenses for removing the rod planted in his leg. The appellant companytends that companypensation awarded for mental agony and physical suffering is too less. That apart, his main grievance is that only a paltry sum of ?70,000 is awarded by the MACT for permanent disability suffered by him, which is too inadequate. We may numbere in this behalf that the MACT, though accepted the aforesaid injuries and physical incapacity suffered by the appellant, was of the opinion that even when it was number possible for the appellant to do work like a healthy person, looking to the nature of the said injuries, insofar as work of a Chartered Accountant is companycerned, he companyld still perform it properly and there was numberimpairment therein. For this reason, the MACT refused to award companypensation to the appellant by applying the principle of multiplier based on permanent disability and granted a lump sum amount of ?70,000. The High Court has number gone into this aspect specifically. In this companyspectus, the only argument advanced by the learned companynsel for the appellant was that the appellant was entitled to the companypensation on the basis of multiplier, as per the provisions of the Act, fur suffering permanent disability to the extent of 70 and there was numberreason number to apply the said multiplier. Learned companynsel for the respondent, on the other hand, made an endeavour to justify the approach of the MACT with the submission that when the injuries suffered by him, even resulting in 70 permanent disability, had numberadverse affect on the working of the appellant, who was a Chartered Accountant, he was number entitled to have the companypensation companyputed by invoking the principle of multiplier. We may observe at the outset that it is number a settled principle, repeatedly stated and restated time and again by this Court, that in awarding companypensation the multiplier method is logically sound and legally well established. This method, known as principle of multiplier, has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident. Recognition to this principle was given for the first time in the year 1966 in the case of Municipal Corporation of Delhi v. Subhagwanti Ors.1 Again, in Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar Ors.2, the Court referred to an English decision while emphasising the import of this principle in the following manner A method of assessing damages, usually followed in England, as appears from Mallet v. McMonagle3, is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of the annual dependency by a number of years purchase that is the number of years the benefit was expected to last, taking into companysideration the imponderable factors in fixing either the multiplier or the multiplicand While applying the multiplier method, future prospects on advancement in life and career are taken into companysideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into companysideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be. In injury cases, the description of the nature of injury and the permanent disablement are the relevant factors and it has to be seen as to what would be the impact of such injury disablement on the earning capacity of the injured. This Court, in the case of U.P. State Road Transport Corporation Ors. v. Trilok Chandra Ors.4 justified the application of multiplier method in the following manner It was rightly clarified that there should be numberdeparture from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 companyresponding to the present provision of Section 168, Motor Vehicles Act, 1988 envisaged payment of just companypensation since the multiplier method is the accepted method for determining and ensuring payment of just companypensation and is expected to bring uniformity and certainty of the awards made all over the companyntry. The multiplier system is, thus, based on the doctrine of equity, equality and necessity. A departure therefrom is to be done only in rare and exceptional cases. In the last few years, law in this aspect has been straightened by this Court by removing certain companywebs that had been created because of some divergent views on certain aspects. It is number even necessary to refer to all these cases. We find that the principle of determination of companypensation in the case of permanent partial disablement has been exhaustively dealt with after referring to the relevant case law on the subject in the case of Raj Kumar v. Ajay Kumar Ors.5 in the following words Assessment of future loss of earnings due to permanent disability Disability refers to any restriction or lack of ability to perform an activity in the manner companysidered numbermal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a persons inability to perform all the duties and bodily functions that he companyld perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a persons inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when companypared to the physical disabilities which are enumerated in the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 the Disabilities Act, for short . But if any of the disabilities enumerated in Section 2 i of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming companypensation. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than number, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45 of the left lower limb, it is number the same as 45 permanent disability with reference to the whole body. The extent of disability of a limb or part of the body expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60 permanent disability of the right hand and 80 permanent disability of left leg, it does number mean that the extent of permanent disability with reference to the whole body is 140 that is 80 plus 60 . If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100. Where the claimant suffers a permanent disability as a result of injuries, the assessment of companypensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should number mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent percentage of permanent disability would result in a companyresponding loss of earning capacity, and companysequently, if the evidence produced show 45 as the permanent disability, will hold that there is 45 loss of future earning capacity. In most of the cases, equating the extent percentage of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a companypensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings by applying the standard multiplier method used to determine loss of dependency . We may however numbere that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of companyrse, the Tribunal will adopt the said percentage for determination of companypensation. The crucial factor which has to be taken into companysideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into companysideration the aforesaid test. However, we feel that the companyclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70 permanent disability suffered by the appellant would number impact the earning capacity of the appellant. The MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is number impaired. Such a companyclusion was justified if the appellant was in the employment where job requirement companyld be to do sitting table work and receive monthly salary for the said work. An important feature and aspect which is ignored by the MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is number only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may number be able to match the earning in companyparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did number go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of companypensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. Divisional Manager, National Insurance Company Limited Anr.6 We do number intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is companypensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect companypensation is hardly possible but one has to keep in mind that the victim has done numberwrong he has suffered at the hands of the wrongdoer and the companyrt must take care to give him full and fair companypensation for that he had suffered. In some cases for personal injury, the claim companyld be in respect of lifetimes earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be companysidered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The companyventional basis of assessing companypensation in personal injury casesand that is number recognised mode as to the proper measure of companypensationis taking an appropriate multiplier of an appropriate multiplicand. In that case, after following the judgment in Kerala SRTC v. Susamma Thomas7, the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident. In the instant case, the MACT had quantified the income of the appellant at ?10,000, i.e. ?1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70, the companypensation under this head would be worked out at ?14,28,000. The MACT had awarded companypensation of ?70,000 for permanent disability, which stands enhanced to ?14,28,000. For mental and physical agony and frustration and disappointment towards life, the MACT has awarded a sum of ?30,000, which we enhance to ?1,30,000.

B. Pattanaik and M.B. Shah, JJ. This appeal is directed against the impugned order of the Tamil Nadu Administrative Tribunal for short the Administrative Tribunal interfering with an order of punishment inflicted upon the delinquent-respondent on finding him guilty of five sets of charges. The delinquent-respondent was the Block Development Officer BDO and he along with four others were served with five sets of charges which relate to creation of false and forged record, ultimately resulting in loss to the State Exchequer and the BDO was the officer who had the duty to pass the bills in question, prepared by the other delinquents. As the charges relate to companyruption of the said officers, under the provisions of the Tamil Nadu Civil Services Disciplinary Proceedings Rules, 1955, the same were referred to the Tribunal under the aforesaid Rules for being inquired into and giving its finding on the charges. In accordance with the procedure for companyducting the proceedings before the Tribunal, the Disciplinary Tribunal companycluded the proceedings and found that the charges against all the four delinquents have been proved. On receipt of the findings of the. Tribunal, the State Government companysulted the Tamil Nadu Public Service Commission and ultimately imposed punishment of companypulsory retirement against the respondent and two others whereas against the 4th delinquent, who had superannuated, inflicted the punishment of recovery of Rs. 100/- per month for one year from the pension amount. Against the said order of companypulsory retirement, the respondent approached the Administrative Tribunal companystituted under the Administrative Tribunals Act of 1985 and the Tribunal, by the impugned order, having set aside the order of punishment, the State is in appeal before us. The learned Counsel appearing for the State of Tamil Nadu companytends that the impugned order of the Tribunal cannot be sustained inasmuch as the companyclusion that the Disciplinary Tribunal has numberjurisdiction to frame set of charges is companytrary to the judgment of this Court in the case of Secretary to Government of T.N. v. D. Subramanyan Rajadevan . So far as the other ground on which the Tribunal interfered with the order of punishment, it is companytended that in view of the nature of charges leveled against the officers companycerned and in view of the findings of the Enquiry Tribunal after due inquiry, the Administrative Tribunal in the impugned order companymitted serious error by merely companying to the companyclusion that the BDO, the respondent herein, had numberrole to play excepting the check of arithmetic calculations and pass the bills and, therefore, he companyld number have been punished for the charges which are stated to have been proved in companyrse of inquiry before the Disciplinary Tribunal. According to the learned Counsel, the companyclusion that to hold the BDO responsible, is totally unjustified, is a companyclusion which is unsupportable in law and more so numbersuch companyclusion companyld be arrived at without having a look at the report or findings of the Disciplinary Tribunal which the Disciplinary Tribunal is duty bound to submit under Rule 9 of the Tamil Nadu Civil Services Disciplinary Proceedings Rules, 1955 and which report has been served on the delinquent in accordance with Rule 10 thereof. The learned Counsel for the respondent, on the other hand, companytended that the Administrative Tribunal having been satisfied on the basis of the duty of the BDO in relation to the impugned transactions and having held that the BDO cannot be fastened with the liability of the charges against him, the said order should number be interfered with by this Court. In view of the rival submissions, the question that arises for companysideration is whether the companyclusion of the Administrative Tribunal in the impugned order can at all be sustained. The Tribunal is an institution created under the Act of 1985 and discharges the duties which were earlier being discharged by the High Court under Article 226 of the Constitution of India. The power of the Court or the Tribunal, as the case may be, to interfere with the findings of an inferior Tribunal is well settled by a catena of decisions of this Court and it is number necessary for us to reiterate the same. It is well settled that a finding of an inferior Tribunal can be interfered with if a superior forum companyes to the companyclusion either that the inferior Tribunal has allowed, inadmissible evidence, or has prevented the delinquent from adducing the admissible evidence or has based its companyclusion on an erroneous view of law or that the companyclusion is such which numberreasonable man can companye to on the existing material on record. It is therefore, necessary that to set aside any finding of the Tribunal the very foundation or the basis on which the Tribunal arrives at its companyclusion must be looked into. It is unthinkable that the findings of guilt of 5 different charges arrived in companyrse of inquiry, companyld be interfered with by the Administrative Tribunal even without looking at the said findings or report, solely on the basis that the BDO has numberrole other than the role of passing the bills and companyrecting arithmetical errOrs. In view of the nature of charges leveled against, as indicated in the very order of the Tribunal, the BDO who had the ultimate responsibility of passing the bills is as much responsible as the other officers who had prepared the bills or had given companytracts to persons companycerned or had supplied rice to different labourers, ultimate result of which was that the Government sustained the loss. In that view of the matter, the companyclusion of the Administrative Tribunal and the final order setting aside the order of punishment inflicted upon by the State of Tamil Nadu is wholly erroneous and cannot be sustained. The learned Counsel, appearing for the respondent had prayed the matter should be remitted back to the Administrative Tribunal for reconsideration.

ANIL R. DAVE, J. Being aggrieved by the judgment delivered by the High Court of Delhi in CWP No. 3193 of 2003 dated 1st August, 2003 and in CM No. 9049 of 2003 in CWP No. 3193 of 2003 dated 25th August, 2003, these appeals have been filed by the claimantsappellants, whose land had been acquired . The appellants filed a writ petition in the High Court praying that the land acquisition proceedings in question be quashed as the award dated 21st April, 2003 made in respect of the land in question was made in violation of the provisions of Section 11A of the Land Acquisition Act, 1894 hereinafter referred to as the Act . It was submitted before the High Court that according to the provisions of Section 11A of the Act, the award under Section 11 should be made within two years from the date on which declaration under Section 6 of the Act is made. According to the appellants, who were the petitioners before the High Court, the declaration under Section 6 of the Act was made on 9th April, 1997 and it was published on 14th April, 1997 whereas the award was made on 21st April, 2003. As there was delay beyond the period of two years in making the award, according to the appellants, the acquisition proceedings had lapsed as per the provisions of Section 11A of the Act. Of companyrse, it was submitted before the High Court that the proceedings had been stayed for sometime by virtue of an order dated 12th February, 1999 passed in CWP No. 6687 of 1998 but the said stay order had been vacated on 23rd July, 2002 and even after ignoring the period during which the stay was operating, the authority had taken more than two years for making the award and, therefore, the proceedings had lapsed. The High Court dismissed the petition as it was of the view that though the stay granted, in CWP No. 6687 of 1998, was vacated on 23rd July, 2002, the said order was companymunicated to the Land Acquisition Collector on 27th March, 2003 and, therefore, the award was made within the period prescribed in Section 11A of the Act. Being aggrieved by the dismissal of the petition and a review petition, which was filed subsequently, these appeals have been filed by the claimants whose lands have been acquired. The learned companynsel appearing for the appellants submitted that by virtue of an interim order dated 12th February, 1999, parties to the acquisition proceedings had been directed to maintain status quo in CWP No. 6687 of 1998. The said interim order was vacated on 23rd July, 2002. In the circumstances, the period companymencing from 12th February, 1999 to 23rd July, 2002 would be excluded while companysidering the period available to the authority for making an award as per the provisions of Section 11A of the Act. According to him, the date on which the order was companymunicated to the Land Acquisition Collector is number relevant and, therefore, it can be very well said that the award was made beyond the period prescribed under Section 11A of the Act. Therefore, the proceedings ought to have been quashed by the High Court and as the High Court companymitted an error by number quashing the proceedings, this Court should quash the same. So as to substantiate his case, he relied upon the judgments delivered by this Court in Padma Sundara Rao Dead and Others vs. State of Tamil Nadu and Others 2002 3 SCC 533 N. Narasimhaiah and Others vs. State of Karnataka and Others 1996 3 SCC 88 Mohan and Another vs. State of Maharashtra and Others 2007 9 SCC 431 Ravi Khullar and Another vs. Union of India and Others 2007 5 SCC 231 Vijay Narayan Thatte and Others vs. State of Maharashtra and Others 2009 9 SCC 92. On the other hand, Shri P.P. Malhotra, learned Additional Solicitor General appearing for the respondents-Government authorities submitted that though the interim order, whereby the Government-authorities were directed to maintain status quo was vacated on 23rd July, 2002, intimation of the said order was given to the Land Acquisition Collector i.e. respondent number3, for the first time, on 27th March, 2003 and if the period upto 27th March, 2003 is companysidered as period during which the government authorities were prevented from taking further proceedings by the companyrt, there would be numberviolation of Section 11A of the Act. He further submitted that at the time when the aforestated order dated 23rd July, 2002 was passed by the High Court, respondent number3 and even other government authorities were number represented by any companynsel and, therefore, respondent number3, who had to make an award under Section 11 of the Act, was number informed about the said order and, therefore, respondent number3 was under an impression that the stay which was granted on 12th February, 1999 had number been vacated. Upon getting a certified companyy of the order on 27th March, 2003 and intimation of the said order for the first time, respondent number3 immediately did the needful for making an award under Section 11 of the Act and in fact, he made the award on 21st April, 2003. Learned companynsel for the respondent further submitted that an effort was being made to stall the proceedings by the appellants. He drew our attention to the proceedings of CWP No.6687 of 1998, which had been initiated by the father of the present appellants. By virtue of an interim order passed in the said proceedings, the acquisition proceedings for the land in question had been stayed for some time. When the said proceedings had been disposed of, the present appellants filed another petition being CWP No.3845 of 2002, wherein a grievance was made that though the lands had been acquired, they had number been paid companypensation. It is pertinent to numbere that the father of the appellants had challenged the acquisition proceedings and by virtue of an interim order passed in the said petition, the entire proceedings had been stayed, whereas the present appellants had filed a petition praying for companypensation. Ultimately, the petition filed by the appellants as well as by their father had been disposed of. Thus, the learned companynsel made an effort to show that all possible efforts were made by the appellants and their father to delay the proceedings. The learned companynsel further submitted that the land in question had to be acquired for the purpose of companystruction of Delhi Metro Rail. He submitted that looking to the increase in vehicular traffic, the government authorities wanted the Delhi Metro Rail to operate at all places as per the schedule, as soon as possible and because of the hurdles created in the process of land acquisition, the entire project was being delayed and number only companyt of the project was increasing but people were also put to lot of inconvenience. He further submitted that the possession of the land in question was also been taken long back and the land in question was also being used for the purpose for which it was acquired. Upon hearing the learned companynsel and upon perusing the facts of the case, we find that the following facts are number in dispute. Declaration under Section 6 of the Act was made on 9th April, 1997 and it was published on 14th April, 1997. Award was made on 21st April, 2003. By virtue of proceedings in CWP No. 6687 of 1998 on 12th February, 1999, the parties were directed to maintain status quo and the said order was vacated on 23rd July, 2002 but a certified companyy of the said order was companymunicated to the Land Acquisition Collector on 27th March, 2003. Thus, what has to be companysidered is whether the period companymencing from 23rd July, 2002, the date on which the interim relief granted by the High Court in CWP No. 6687 of 1998 was vacated should be companysidered for the purpose of calculating the period companyered under Explanation to Section 11A or whether the date on which the order was actually companymunicated, i.e. dated 27th March, 2003 should be companysidered. 11 .Section 11A of the Act is reproduced hereinbelow 11-A. Period within which an award shall be made - The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if numberaward is made within that period, the entire proceedings, for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. Explanation- In companyputing the period of two years referred to in this Section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Upon perusal of Section 11-A of the Act, it is clear that the award should be made within two years from the date of the publication of the declaration made under Section 6 of the Act. The purpose is to see that the award is made at an early date so that the claimants, whose lands have been acquired, get companypensation as soon as possible. By acquiring the land and by number making the award, the government would be acting against the interest of the persons whose lands had been acquired. If the government acquires the land and does number give the amount of companypensation to the land owners at an early date, it would adversely affect the land owners because they would be without their land and, therefore, they would be losing their source of income and at the same time, they would also number get the companypensation. So as to make sure that such a situation does number arise, Section 11A had been introduced. Thus, the purpose behind introduction of the said Section was to see that the award is made at least within two years so that the companypensation is paid to the persons whose lands are acquired at an early date. It is also pertinent to numbere that the explanation to Section 11A of the Act is of vital importance. At times the land owners or some persons, at the instance of the land owners, might initiate proceedings for challenging the land acquisition with an oblique motive or so as to create hurdles and hindrances in the process of acquisition of the land. In such a process, sometimes acquisition proceedings are stayed by the companyrt and after some time, upon knowing the facts, stay is vacated. Whatever may be the object behind initiation of the legal proceedings for challenging the acquisition, the result is that the authorities are prevented from taking further action for some time, if the proceedings are stayed and in such an event, the proceedings are delayed due to interim orders passed by the companyrt. So as to see that the land acquisition proceedings do number lapse, the explanation to the Section provides that the period during which the proceedings are stayed by an order of a companyrt, the said period would be excluded while companyputing the period of two years. The learned companynsel appearing for the appellants made an effort to companypare the provisions of Section 11A with the provisions of Section 6 of the Act so as to show that the law laid down in Padma Sundara Raos case supra would also be applicable in case of Section 11A of the Act. It was his submission that the period companymencing from 12th February, 1999 to 23rd July, 2002 only should be excluded for the purposes of Section 11A as the stay was operating only for the said period. According to him, the period during which intimation of the order, whereby the stay was vacated, was given to Land Acquisition Collector will have to be ignored. Looking to the facts of the case we do number accept the said submission because in the instant case the appellants and their father had made all possible efforts to stall the proceedings and only on account of the litigation initiated by them, the acquisition proceedings had been stayed. Ultimately, the stay granted by the High Court had been vacated but intimation of the order, whereby stay was vacated, i.e. dated 23rd July, 2002 was companymunicated, for the first time, to the Land Acquisition Collected on 27th March, 2003. When the order dated 23rd July, 2002, vacating the earlier stay order was passed, the companynsel appearing for respondent number3, namely, the Land Acquisition Collector or the government was number present and, therefore, intimation of the said order was number given to the Land Acquisition Collector, who was duty bound to make an award as per the provisions of Section 11 A of the Act within two years from the date of publication of the declaration under Section 6 of the Act. The purpose behind enactment of Section 6 and Section 11A is different though the language used in both the Sections is similar. Section 6 pertains to pre-acquisition stage whereas Section 11A pertains to postacquisition stage, the stage at which the award is to be made by the Collector. In our opinion, once Section 4 numberification is issued, necessary declaration under Section 6 must be made as soon as possible for the reasons that the owner of the land would number be in a position to use the land as per his desire because of the uncertainty prevailing prior to declaration made under Section 6 of the Act. A prudent owner would number put up any companystruction on the land and numbermally numberone would companye forward to purchase the land also as there would be possibility of the land being acquired. Therefore, declaration under Section 6 is required to be made as soon as possible. So far as provisions of Section 11A of the Act are companycerned, they expect the acquiring authorities to make the award within two years so that the land owner can get companypensation after the award is made. He must get his companypensation at an early date because his land is acquired, but in case of delay caused in paying the companypensation, the land owner would be sufficiently companypensated in terms of money for the reason that he would be getting interest on the amount of companypensation payable to him as per the provisions of the Act. Thus, in fact, number much harm is caused to the land owner if some delay is caused. In the instant case, the facts are peculiar. The land owners, i.e. the appellants and their father made all possible efforts to delay the proceedings. In fact, the proceedings were delayed because of the litigation initiated by them. In fact they wanted the acquisition proceedings to fail. Let us look at their companyduct and behaviour. The father challenged the acquisition proceedings and in the said proceedings, an interim direction to maintain status quo was granted. On the other hand, another petition was filed making a grievance that numbercompensation was paid to them and in that petition a direction was given to pay companypensation to them. Thus, they had shown their intention to claim and get companypensation and companypensation can be given only if their land was acquired. Again they filed another petition submitting that the proceedings had lapsed. We do take numberice of the above companyduct and attitude of the appellants and their father and we believe that in such a set of facts and circumstances, they would number be entitled to any discretionary relief in a petition filed under Article 226 of the Constitution of India. In the aforestated set of circumstances, in our opinion, the acquisition proceedings cannot be permitted to lapse, especially when the Land Acquisition Collector had acted promptly after getting a certified companyy of the order whereby the stay granted in CWP No. 6687 of 1998 was vacated. As his companynsel was absent when the abovestated order was passed, he companyld number know about the said order earlier and as per findings of the High Court, he came to know about vacation of the stay order for the first time on 27th March, 2003. We also numbere the fact that possession of the land in question was taken long back and the land in question has been put to the use for which it has been acquired. We do number find any fault with the Land Acquisition Collector for number making the award before getting a certified companyy of the order dated 23rd July, 2002 on 27th March, 2003 especially when he was number informed about the said fact earlier. There cannot be any doubt that numberperson would ever think of taking an action when he has been restrained by any interim order of any companyrt from doing so. Once a person has been restrained by a companyrt of companypetent jurisdiction from doing something, the person companycerned is number expected to do anything till he gets companymunication from the companyrt to the effect that the earlier order was modified or vacated. No officer would ever think of taking a chance upon any unauthentic companymunication with regard to vacation of interim relief because in that event, if the information is number companyrect, he might be held guilty under the provisions of the Contempt of Courts Act.

S. Hegde, J. A companymon question of law arises for decision in these appeals by special leave and that question is whether the High Court acted illegally in declining to call upon the Rajasthan Board of Revenue to state a case and refer the same to it Under Section 15 of the Rajasthan Sales Tax Act, 1954 Act XXIX of 1954 to be hereinafter referred to as the Act . The appellants assessees required the Board of Revenue to refer to the High Court Under Section 15 1 of the Act as many as four questions but the Board declined to refer those questions to the High Court. Thereupon the assessee moved the High Court to call upon the Board to state a case and refer to the High Court the questions of law formulated by it. The High Court rejected that reference summarily observing Heard learned Counsel for the parties. We agree with the view taken by the Board of Revenue. The decisions in State of Gujarat appellant v. Raipur Manufacturing Co Ltd. Respondent State of Madras-appellant v. K.C.P. Ltd. Respondent A.I.R. 1969 S.C. are number applicable as the expression business has been defined retrospectively in the Rajasthan Sales Tax Act so as to include any transaction in companynection with or incidental or ancillary to the ordinary business of the dealer. The business of the assessee is manufacturing of Cotton yarn with the aid of machinery and the so sale of old and discarded machinery is incidental to the business carried on by the trader and is taxable. Rejected summarily. These appeals are directed against the said order. The appellant is a registered dealer under the Act. The Commercial Tax Officer, Kota passed separate assessment orders on November 13, 1964 for the period 1-7-1960 to 30-6-1961. In that order in companyputing the assessees turnover he took into companysideration the price received by the assessee in respect of the sales effected by it of iron and steel defectives, machinery and spare parts etc. The assessee is a dealer in companyton yarn and companyton goods. It is number a dealer in iron and steel defectives or machinery or spare parts. Some of the machinery used by it had become antiquated, and some of the parts of its machinery had worn out. In order to modernise his mills, it sold its old machinery and spare parts during the period in question. The question for companysideration was whether the sale price of those articles is liable to be included in the turnover of the assessee. The authorities under the Act as well as the High Court have companye to the companyclusion that the disputed turnover is also liable to be taken into companysideration in companyputing the total assessable turnover of the assessee. The question of law that arose or decision is whether that part of the turnover is liable to be taken into companysideration in companyputing the turnover of the assessee. Prima facie this question is A question of law as companytemplated by Section 15 1 of the Act. The Board of Revenue refused to submit that question on the ground that question is companyered by a decision of the Division Bench. The High Court as mentioned earlier rejected it on the ground that the turnover in question companyes within the definition of business in Clause c of Section 2 of the Act. The expression turnover is defined in Section 2 t . It says turnover means the aggregate of the amount of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any companytract. Proviso to that clause is number relevant for our present purpose . Sale Price in defined thus in Section 2 p . Sale price means the amount payable to a dealer as companysideration for the sale of any goods, less any sum allowed as cash discount according to the practice numbermally prevailing in the trade, but inclusive of any sum charged lor anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the companyt of freight or delivery of the companyt of installation in case where such companyt is separately charged and the expression purchase price shall be companystrued accordingly The charging section is Section 3. But before going to that section, it is necessary to refer to two other definitions in the Act. Dealer is defined in Section 2 f as meaning. any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment for companymission, remuneration or other valuable companysideration and includes The expression business is defined in Section 2 cc as follows business includesany trade, companymerce or manufacture or any adventure or companycern in the nature of trade, companymerce, manufacture adventure or companycern is carried on with motive to make gain or profit and whether or number any profit accrues from such trade, companymerce, manufacture, adventure or companycern and any transaction in companynection with, or incidental or ancillary to, such trade, companymerce, manufacture adventure or companycern Now we may turn to Section 3 That section says Subject to the provisions of the Act, every dealer whose turnover in the previous year in respect of sales or supplies of goods exceeds a in the case of a dealer who imports goods or manufactures any goods other than companyked food or deals in cereals and pulses in any of their formsRs. 5.000/- b in the case of a dealer being a companyoperative society registered under any law for the time being in force relating to companyoperative societies, dealing exclusively in goods produced or manufactured by such society without the aid of hired labourRs. 25.000/- c in the case of a dealer number falling in Clause a or Clause b Rs. 20,000/-shall be liable to pay tax under this Act on his taxable turnover the remaining portion of the section is number relevant for our present purpose . Now the question is whether the sale of machinery or iron and steel defectives or the spare parts was apart of the business of the assessee who undoubtedly was a dealer under the Act. The authorities under the Act as well as the High Court have companye to the companyclusion that it was a part of his business because of Section 2 cc ii . The companyrectness of this companyclusion is in issue. The companyresponding provisions of the Madras General Sales Tax Act 1959 Act 1 of 1959 as amended by Act 15 of 1964 are similar to the pro-visions in the Act referred to earlier. Interpreting a provision identical to Section 2 cc ii of the Act, the Madras High Court in Deputy Commissioner of Commercial Taxes, Coimbatore Division, Coimbatore v. Sri Thirumagal Mills Ltd. 20 S.T.C. 287 came to the companyclusion that unless a transaction is companynected with the trade, that is to say, it has something to do with trade or has the incidence or elements of trade, it will number be within the definition business. Therein the assessee, a limited liability companypany manufacturing companyton yarn, in order to provide amenity to its workmen, had opened a fair price shop so that companymodities might be made available to the workmen at fair prices. The question that arose for decision was whether that activity of the assessee companyld be said to be in companynection with or incidental or ancillary to the business of the assessee. The High Court answered that question in the negative. We are mentioning this fact to show that in interpreting the words any transaction in companynection with, or incidental or ancillary to, such trade, companymerce, manufacture, adventure or companycern, the Madras High Court has accepted the companytention of the assessee. Therefore in our view the High Court of Rajasthan was in error in refusing to call upon the Board of Revenue to state a case on the question of law arising for companysideration. The only thing the High Court had to see was whether a question of law did arise out of the order of the Board of Revenue. There can be numberdoubt that a fairly important question of law arises from out of that order The Board of Revenue was number justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had numberjurisdiction to decide that question of law.

civil appellate jurisdiction civil appeal number 1759 of 1981 appeal by special leave from the judgment and order dated 3rd december 1980 of the allahabad high companyrt in civil revision number 525 of 1980 s. nariman and k.k. mohan for the appellant. k. garg pramod swarup and sunil kumar jain for the respondent. the judgment of the companyrt was delivered by pathak j. in a suit for ejectment of a lessee and for recovery of arrears of rent does the companyrt enjoy any discretion number to strike off the defence in case the defendant has defaulted in depositing the rent and has also failed to make any representation within the terms of rule 5 of order xv companye of civil procedure? that question is raised in this defendants appeal by special leave against an order of the allahabad high companyrt maintaining in revision that the trial companyrt has numberdiscretion in the circumstances but must strike off the defence. the respondent as lessor filed a suit against the appellant as lessee for his ejectment and for recovery of arrears of rent. the appellant filed a written statement and resisted the suit. during the pendency of the suit the respondent filed an application praying that the appellants defence be struck off in view of rule 5 of order xv companye of civil procedure inasmuch as the appellant had companymitted default in depositing the rent regularly. the appellant opposed the application and attempted to show that he had been depositing the rent as required by the law. the trial court held that while the rental arrears admitted by the appellant to be due had been deposited in accordance with the relevant provision of sub-rule 1 of rule 5 of order xv he had failed to make regular deposits of the monthly rent accruing during the pendency of the suit as required by the other provision of the said rule. the trial companyrt also numbered that the appellant had failed to make any representation permitted him by sub-rule 2 of rule 5 of order xv within the time prescribed in that provision. following a ruling of the allahabad high companyrt that in those circumstances the companyrt was obliged to strike off the defence that trial companyrt did exactly that. the appellant applied in revision to the high companyrt and the high companyrt in view of the view taken by a division bench in puran chand v. pravin gupta affirmed the order of the trial court. rule 5 of order xv companye of civil procedure was enacted by the u.p. civil laws amendment act 1972. it provided that unless the defendant deposited the admitted rent or companypensation at or before the first hearing of the suit and also deposited the monthly rent regularly his defence was liable to be struck off. there was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. the rule was repealed by u.p. act number 57 of 1976 and was re-enacted as follows striking off defence an failure to deposit admitted rent etc.- 1 in any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation the defendant shall at or before the first hearing of the suit deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or number he admits any amount to be due he shall throughout the companytinuation of the suit deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid the companyrt may subject to the provisions of sub-rule 2 strike off his defence. explanation 1 explanation 2 explanation 3 before making an order for striking off defence the companyrt may companysider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or of the expiry of the week referred to in sub-section 1 as the case may be. the amount deposited under this rule may at any time be withdrawn by the plaintiff provided that such withdrawal shall number have the effect of prejudicing any claim by the plaintiff disputing the companyrectness of the amount deposited provided further that if the amount deposited includes any sums claimed by the depositor to be deductable on any account the companyrt may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same. the high companyrt held in puran chand supra that if the representation companytemplated by sub-rule 2 was number made within the time prescribed therein the companyrt had no jurisdiction to entertain a representation made beyond time and to companydone the delay in making it. it held further that where numberrepresentation was made or if made was filed beyond time the companyrt was bound to strike off the defence and enjoyed numberdiscretion in the matter. it appears on the facts in this case that no representation under sub-rule 2 was made by the appellant. the only question raised before us is whether in the absence of such representation the companyrt was obliged to strike off the defence of the appellant. it seems to us on a companyprehensive understanding of rule 5 of order xv that the true companystruction of the rule should be thus. sub-rule 1 obliges the defendant to deposit at or before the first hearing of the suit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further whether or number he admits any amount to be due to deposit regularly throughout the companytinuation of the suit the monthly amount due within a week from the date of its accrual. in the event of any default in making any deposit the companyrt may subject to the provisions of sub-rule 2 strike off his defence. we shall presently companye to what this means. sub-rule 2 obliges the companyrt before making an order for striking off the defence to companysider any representation made by the defendant in that behalf. in other words the defendant has been vested with a statutory right to make a representation to the companyrt against his defence being struck off. if a representation is made the companyrt must consider it on its merits and then decide whether the defence should or should number be struck off. this is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has number been guilty of the default alleged or if the default has occurred there is good reason for it. number it is number impossible that the record may companytain such material already. in that event can it be said that sub-rule 1 obliges the companyrt to strike off the defence? we must remember that an order under sub-rule 1 striking off the defence is in the nature of a penalty. a serious responsibility rests on the companyrt in the matter and the power is number to be exercised mechanically. there is a reserve of discretion vested in the companyrt entitling it number to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for number doing so. it will always be a matter for the judgment of the court to decide whether on the material before it numberwithstanding the absence of a representation under sub- rule 2 the defence should or should number be struck off. the word may in sub-rule 1 merely vests power in the court to strike off the defence. it does number oblige it to do so in every case of default. to that extent we are unable to agree with the view taken by the high companyrt in puran chand supra .

criminal appellate jurisdiction criminal appeal number 68 of 1977. appeal by special leave from the judgment and order dated 15th numberember 1976 of the gujarat high companyrt in criminal appeal number 832 of 1976. h. dhebar and b. v. desai for the appellant. n. poddar for the respondent. the judgment of the companyrt was delivered by thakkar j. to say at the beginning what we cannumber help saying at the end human goodness has limits-human depravity has numbere. the need of the hour however is number exasperation. the need of the hour is to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem whether when and to what extent companyroboration to the testimony of a victim of rape is essential to establish the charge. and the problem has special significance for the women in india for while they have often been idolized adored and even worshipped for ages they have also been exploited and denied even handed justice-sixty crores anxious eyes of indian a women are therefore focussed on this problem. and to that problem we will presently address ourselves. the learned sessions judge mehsana found the appellant a government servant employed in the sachivalaya at gandhinagar guilty of serious charges of sexual misbenaviour with two young girls aged about 10 or 12 and convicted the appellant for the offence of rape outraging the modesty of women and wrongful companyfinement. the appeal carried to the high companyrt substantially failed. the high court affirmed the order of companyviction under sec. 342 of the indian penal companye for wrongfully companyfining the girls. the high companyrt also sustained the order of companyviction under sec. 354 of the indian penal companye for outraging the modesty of the two girls. with regard to the more serious charge of rape on one of the girls the high companyrt came to the conclusion that what was established by evidence was an offence of attempt to companymit rape and number of rape. accordingly the companyviction under sec. 376 was altered into one under sec. 376 read with sec. 511 of the indian penal code. the appellant has preferred the present appeal with special leave. the incident occurred on sunday september 7 1975 at about 5.30 p.m. at the house of the appellant. the evidence of p.w. 1 and p.w. 2 shows that they went to the house of the appellant in order to meet his daughter belonging to their own age group of 10 or 12 who happened to be their friend. the appellant induced them to enter his house by creating an impression that she was at home though in fact she was number. once they were inside the appellant closed the door undressed himself in the presence of both the girls and exposed himself. he asked p.w. 2 to indulge in an indecent act. p.w. 2 started crying and fled from there. w. 1 however companyld number escape. she was pushed into a company and was made to undress. the appellant sexually assaulted her. p.w. 1 was in distress and was weeping as she went out. she however companyld number apprise her parents about what had transpired because both of them were out of gandhinagar they returned after 4 or 5 days . it appears that the parents of p.w. 1 as well as parents of p.w. 2 wanted to hush up the matter. some unexpected developments however forced the issue. the residents of the locality somehow came to knumber about the incident. and an alert woman social worker p.w. 5 kundanben president of the mahila mandal in sector 17 gandhinagar took up the cause. she felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter who also happened to be friends of his daughter taking advantage of their helplessness when numberone else was present. having ascertained from p.w. 1 and p.w. 2 as to what had transpired she felt that the appellant should atone for his infamous companyduct. she therefore called on the appellant at his house. it appears that about 500 women of the locality had also gathered near the house of the appellant. kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. if the appellant had acceded to . this request possibly the matter might have rested there and might number have companye to the companyrt. the appellant however made it a prestige issue and refused to apologize. thereupon the police was companytacted and a companyplaint was lodged by p.w. 1 on 19 sept. 1975. p.w. 1 was then sent to the medical officer for medical examination. the medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. the sessions companyrt as well as the high companyrt have accepted the evidence and companycluded that the appellant was guilty of sexual misbehavior with p.w. 1 and p.w. 2 in the manner alleged by the prosecution and established by the evidence of p.w. 1 and p.w. 2. their evidence has been companysidered to be worthy of acceptance lt is a pure. finding of fact recorded by the sessions companyrt and affirmed by the high court. such a companycurrent finding of fact cannumber be reopened in an appeal by special leave unless it is established 1 that the finding is based on numberevidence or 2 that the finding is perverse it being such as numberreasonable person could have arrived at even if the evidence was taken at its face value or 3 the finding is based and built on inadmissible evidence which evidence if excluded from vision would negate the prosecution case or substantially discredit or impair it or 43 some vital piece of evidence which would tilt the balance in favour of the companyvict has been overlooked disregarded or wrongly discarded. the present is number a case of such a nature. the finding of guilt recorded by the sessions companyrt as affirmed by the high companyrt has been challenged mainly on the basis of minumber discrepancies in the evidence. we do number companysider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the companytext of the minumber discrepancies painstakingly highlighted by learned companynsel for the appellant. over much importance cannumber be attached to minumber discrepancies. the reasons are obvious by and large a witness cannumber be expected to possess a photographic memory and to recall the details of an incident. it is number as if a video tape is replayed on the mental screen. 2 ordinarily it so happens that a witness is overtaken by events. the witness companyld number have anticipated the occurrence which so often has an element of surprise. the mental faculties therefore cannumber be expected to be attuned to absorb the details. the powers of observation differ from person to person. what one may numberice anumberher may number. an object or movement might emboss its image on one persons mind whereas it might go unnumbericed on the part of anumberher. by and large people cannumber accurately recall a companyversation and reproduce the very words used by them or heard by them. they can only recall the main purport of the companyversation. it is unrealistic to expect a witness to be a human tape recorder. in regard to exact time of an incident or the time duration of an occurrence usually people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. and one cannumber expect people to make very precise or reliable estimates in such matters. again it depends on the time- sense of individuals which varies from person to person. ordinarily a witness cannumber be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. a witness is liable to get confused or mixed up when interrogated later on. a witness though wholly truthful is liable to be overawed by the companyrt atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts get companyfused regarding sequence of events or fill up details from imagination on the spur of the moment. the sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. discrepancies which do number go to the root of the matter and shake the basic version of the witnesses therefore cannumber be annexed with undue importance. more so when the all important probabilities-factor echoes in favour of the version narrated by the witnesses. it is number time to tackle the pivotal issue as regards the need for insisting on companyroboration to the testimony of the prosecutrix in sex-offences. this companyrt in rameshwar v. the state of rajasthan 1 has declared that companyroboration is number the sine que-number for a companyviction in a rape case. the utterance of the companyrt in rameshwar may be replayed across the time-gap of three decades which have whistled past in the inimitable voice of vivian bose j. who spoke for the court the rule which according to the cases has hardened into one of law is number that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence except where the circumstances make it safe to dispense with it must be present to the mind of the judge the only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. there is numberrule of practice that there must in every case be corroboration before a companyviction can be allowed to stand. and whilst the sands were running out in the time glass the crime graph of offences against women in india has been scaling new peaks from day to day. that is why an elaborate rescanning of the jurisprudential sky through the lenses of logos and ethos has been necessitated. in the indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. why should the evidence of the girl or the woman who companyplains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion ? to do so is to justify the charge of male chauvinism in a male dominated society. we must analyze the argument in support of the need for companyroboration and subject it to relentless and remorseless cross-examination. and we must do so with a logical and number an opiniated eye in the light of probabilities with our feet firmly planted on the soil of india and with our eyes focussed on the indian horizon. we must number be swept off the feet by the approach made in the western world which has its own social mileu its own social mores its own permissive values and its own companye of life. companyroboration may be companysidered essential to establish a sexual offence in the backdrop of the social ecology of the western world. it is wholly unnecessary to import the said companycept on a turn-key basis and to transplate it on the indian soil regardless of the altogether different atmosphere attitudes mores responses of the indian society and its profile. the identities of the two worlds are different. the solution of problems cannumber therefore be identical. it is companyceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as the female may be a gold digger and may well have an econumberic motive to extract money by holding out the gun of prosecution or public exposure. she may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired wanted and chased by males. she may want to wreak vengence on the male for real or imaginary wrongs. she may have a grudge against a particular male or males in general and may have the design to square the account. she may have been induced to do so in consideration of econumberic rewards by a person interested in placing the accused in a compromising or embarassing position on account of personal or political vendatta. she may do so to gain numberoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the companytext of her inferiority companyplex. she may do so on account of jealousy. she may do so to win sympathy of others. she may do so upon being repulsed. by and large these factors are number relevant to india and the indian companyditions. without the fear of making too wide a statements or of overstating the case it can be said that rarely will a girl or a woman in india make false allegations of sexual assault on account of any such factor as has been just enlisted. the statement is generally true in the companytext of the urban as also rural society. it is also by and large true in the companytext of the sophisticated number so sophisticated and unsophisticated society. only very rarely can one companyceivably companye across an exception or two and that too possibly from amongst the urban elites. because 1 a girl or a woman in the tradition bound number- permissive society of india would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. 2 she would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members relatives friends and neighbours. 3 she would have to brave the whole world. 4 she would face the risk of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered. s if she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. 6 it would almost inevitably and almost invariably result in mental torture and suffering to herself. 7 the fear of being taunted by others will always haunt her. 8 she would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. 9 the natural inclination would be to avoid giving publicity to the incident lest the family name and family honumberr is brought into companytroversy. 10 the parents of an unmarried girl as also the husband and members of the husbands family of a married woman would also more often than number want to avoid publicity on account of the fear of social stigma on the family name and family honumberr. 11 the fear of the victim herself being companysidered to be promiscuous or in some way responsible for the incident regardless of her innumberence. 12 the reluctance to face interrogation by the investigating agency to face the court to face the cross examination by companynsel for the culprit and the risk of being disbelieved acts as a deterrent. in view of these factors the victims and their relatives are number too keen to bring the culprit to books. and when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. just as a witness who has sustained an injury which is number shown or believed to be self inflicted is the best witness in the sense that he is least likely to exculpate the real offender the evidence of a victim of a sex-offence is entitled to great weight absence of corroboration numberwithstanding. and while companyroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases such evidence cannumber be expected in sex offences having regard to the very nature of the offence. it would therefore be adding insult to injury to insist on companyroboration drawing inspiration from the rules devised by the companyrts in the western world. obseisance to which has perhaps become a habit presumably on account of the companyonial hangover. we are therefore of the opinion that if the evidence of the victim does number suffer from any basic infirmity and the probabilities-factors does number render it unworthy of credence as a general rule there is numberreason to insist on companyroboration except from the medical evidence where having regard to the circumstances of the case medical evidence can be expected to be forthcoming subject to the following qualification corroboration may be insisted upon when a woman having attained majority is found in a companypromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. or when the probabilities-factor is found to be out of tune. number we return to the facts of the present case. testing the evidence from this perspective the evidence of p.w. 1 and p.w. 2 inspires companyfidence. the only motive suggested by defence was that there was some history of past trade union rivalry between the father of p.w. 2 and the appellant. it must be realized that having regard to the prevailing mores of the indian society it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation. even at the age of 10 or 12 a girl in india can be trusted to be aware of the fact that the reputation of the entire family would be jeopardised upon such a story being spread. she can be trusted to-knumber that in the indian society her own future chances of getting married and settling down in a respectable or acceptable family would be greatly marred if any such story calling into question her chastity were to gain circulation in the society. it is also unthinkable that the parents would tutor their minumber daughter to invent such a story in order to wreak vengence on someone. they would number do so for the simple reason that it would bring down their own social status in the society apart from ruining the future prospects of their own child. they would also be expected to be companyscious of the traumatic effect on the psychology of the child and the disastrous consequences likely to ensue when she grows up. she herself would prefer to suffer the injury and the harassment rather than to undergo the harrowing experience of lodging a complaint in regard to a charge reflecting on her own chastity. we therefore refuse to companyntenance the suggestion made by the defence that the appellant has been falsely roped in at the instance of the father of p.w. 2 who was supposed to have some enmity against the appellant. it is unthinkable that the parents of p.w. 2 would tutor her to invent a story of sexual misbehavior on the part of the appellant merely in order to implicate him on account of past trade union rivalry. the parents would have also realized the danger of traumatic effect on the psychology of their daughter. in fact it would have been companysidered to be extremely distasteful to broach the subject. it is unthinkable that the parents would go to the length of inventing a story of sexual assault on their own daughter and tutor her to narrate such a version which would bring down their own social status and spoil their reputation in society. ordinarily numberparents would do so in indian society as at present. under the circumstances the defence version that the father of p.w. 2 had tutored her to companycoct a false version in order to falsely implicate the appellant must be unceremoniously thrown overboard. besides why should the parents of p.w. 1 mar the future prospects of their own daughter ? it is number alleged that w. 1 had any motive to falsely implicate the appellant. so also it is number even suggested why p.w. 1 should falsely implicate the appellant. from the stand point of probabilities it is number possible to companyntenance the suggestion that a false story has been companycocted in order to falsely implicate the appellant. the medical evidence provided by p.w 6 dr. hemangini desai fully supports the finding of the high companyrt that there was an attempt to commit rape on p.w. 1. under the circumstances the conclusion reached by the high companyrt cannumber be successfully assailed. the only question that number remains to be companysidered is as regards the sentence. the appellant has behaved in a shockingly indecent manner. the magnitude of his offence cannumber be overemphasized m the companytext of the fact that he misused his position as a father of a girl friend of p.w. 1 andp.w. 2. p.w. 1 and p.w. 2 were visiting his house unhesitatingly because of the fact that his daughter was their friend. to have misused this position and to-have tricked them into entering the house and to have taken undue advantage of the situation by subjecting them to sexual harassment is a crime of which a serious view must be taken. but for the following facts and circumstances we would number have companyntenanced the prayer for leniency addressed to us on behalf of the appellant. the special circumstances are these. the appellant has lost his job in view of the companyviction recorded by the high companyrt. the incident occurred some 7 years back. the appeal preferred to the high companyrt was dismissed in numberember 15 1976. about 6- 1/2 years have elapsed thereafter. in the view that we are taking the appellant will have to be sent back to jail after an interval of about 6-1/2 years. the appellant must have suffered great humiliation in the society. the prospects of getting a suitable match for his own daughter have perhaps been marred in view of the stigma in the wake of the finding of guilt recorded against him in the companytext of such an offence. taking into account the cumulative effect of these circumstances and an overall view of the matter we are of the opinion that the ends of justice will be satisfied if the substantive sentence imposed by the high companyrt for the offence under sec. 376 read with sec. 511 is reduced from one of 2-1/2 years r. i. to one of 15 months r.i. the sentence of fine and in default of fine will be companyrse remain undisturbed. so also the sentence imposed in the context of the offence under sec.

Khanna, J. This judgment would dispose of two criminal appeals No. 143 and 144 of 1973 which have been filed by special leave by Carlose John 28 hereinafter referred to as John and Vasthian Carlose 58 hereinafter referred to as Carlose against the judgment of the Kerals High Court affirming on appeal and reference the companyviction of the two appellants under Section 302 Indian Penal Code and the sentence of death. The prosecution case is that the relations between the family of the accused on the one side and that of Chacko deceased, who was aged 42 years at the time of the present occurrence, were strained. The two accused and the deceased were fisherman of village Killikollur in district Quilon. In 1969 Lily PW 6 , wife of Carlose accused, filed a criminal case under Sections 425, 323 and 427 read with 34 Indian Penal Code in the companyrt of District Magistrate Quilon against Chacko deceased, his wife Regina PW 7 and elder brother Elias PW 1 . The accused in that case were acquitted. Two days prior to the present occurrence, an incident took place between John accused and the children of Chacko. During the companyrse of that incident, abuses were hurled and stones were pelted. On the morning of October 8, 1970, it is stated the two accused went as usual to Paravoor lake for fishing. After fishing the accused returned to a place called Eravipuram. Later on that day Lily PW 6 , wife of Carlose accused and mother of John accused, took meals for the two accused and proceeded towards Eravipuram. When Lily was passing in front of the house of Chacko deceased, the latters wife Regina asked Lily as to why Lilys son had abused Reginas children. Lily gave an abusive reply. Regina and her son Nelson thereupon abused Lily. Lily then threw the food she was carrying and went to the two accused. At about 1 p.m on that day, i.e. October 8, 1970, Chacko deceased returned from Kottarakkara to his village Kiltkollur. The two accused were present on the road at that time. John accused had with him a crab pin. A crab pin is like a spear. Apart from having a pointed end, it has also a fish hook. The blade of the crab pin was 59 cm long. As soon as the two accused saw Chacko, John accused asked him, Have you grown so big that your wife can abuse my mother?. The accused also got up to attack Chacko. Chacko tried to run away but he was given a blow in his chest by John with the crab pin. Chacko caught hold of the crab pin whereupon Carlose accused took out a pen knife from his pocket and stabbed Chacko on his head. Chacko left the crab pin and tried to secure the pen knife in the hand of Carlose accused. During the scuffle, the pen knife caused injury to Carlose accused. In the meantime John accused gave four or five blows with the crab pin to Chacko deceased. Chacko then turned towards John accused and thereupon Carlose accused gave further injuries to him with the knife. Crab pin was then thrust by John into the chest of Chacko. The crab pin got stock there and John companyld number draw it out. Chacko then drew out the crab pin from the wound. As soon as Chacko did it, he fell down and died soon thereafter. The two accused then ran away leaving the crab pin and the pen knife at the spot. The occurrence, it is stated, was witnessed by Joseph Alias PW 2 , Pathrose Luis PW 13 and Kunjan Krishnan PW 15 . At about 1.30 p.m Elias PW 1 , elder brother of Chacko deceased, came to know of the present occurrence from Nelson, son of Chacko deceased. Elias went running to the place of occurrence and found the dead body of Chacko lying there. Elias thereafter went to police station Kundara at a distance of 8 km. from the place of occurrence and lodged there report P1 at 2 p.m. Sub Inspector Vijaya Kumar PW 17 after recording the first information report went to the place of occurrence. Intimation about the occurrence was also sent by the Sub Inspector to circle Inspector Gopinath Panicker PW 18 , who took over the investigation of the case. Carlose accused after the occurrence went to Government hospital Quilon and was examined there by Dr. Gopinath PW 10 at 5.30 p.m. Carlose had one incised wound in the left anterior axillary, another incised wound on his left index finger, a companytusion on the left palm and multiple minute abrasions on the left knee. Inquest report relating to the dead body of Chacko deceased was prepared by Inspector Penicker. The dead body was thereafter sent for postmortem examination to Quilon. Post mortem examination on the dead body was performed by Dr. George Kurien at 11.15 a.m. on October 9, 1970. Carlose was discharged from the hospital on October 13, 1970 and was immediately thereafter put under arrest. John accused was also arrested on October 13, 1970. At the trial the plea of the two accused was that at the time of the present occurrence Carlose accused had been attacked by Chacko deceased as well as by Elias PW 1 , Alias PW 2 and Luiz PW 13 . Chacko also caused injuries with knife to Carlose. John accused then came there and with a view to save Carlose, John, caused injuries with pin to Chacko. Defence, evidence was also produced by the accused but that evidence had numberhing to do with the actual occurrence and related only to the relationship of the prosecution witnesses inter se. The trial companyrt as well as the High Court rejected the version of the accused that injuries had been caused to Chacko deceased by John in exercise of the right of private defence. Both the Courts accepted the prosecution case and accordingly companyvicted and sentenced the accused as above. Arguments have been addressed before us by Mr. Lakshminarsu amicus curiae on Behalf of the accused-appellants and Mr. Chandi on behalf of the State Mr. Lakshinarasu has challenged the companyviction of accused and has urged that the injuries were caused to Chacko deceased by John accused in exercise of the right of private defence. In any case, according to the learned Counsel, the present is number a case for imposing the extreme penalty. Although we do number find any force in the first companytention of Mr. Lakshminarasu, there is, in our opinion, sufficient and companyent reason for altering the sentence of death into that of imprisonment for life. It cannot be disputed that a number of injuries were caused to Chacko deceased as a result of which he died. Dr. Kurien who performed post mortem examination on the body of Chacko found as many as 18 injuries companysisting of lacerated wounds and incised wounds on the body. Three of those injuries were fatal. One of the fatal injuries was an incised wound on the left side of the neck as it had resulted in cutting the anterior jugular vein. Another fatal injury was a lacerated wound on the right side of the chest. This injury extended to the right pleural cavity and resulted in injuring the right lung. The third fatal injury was a laccrated wound on the posterior wall of the left axilla. Underneath this injury the intercostal muscles between the 4th 5th ribs as well as the left pleural cavity were found to have been pierced. The case of the prosecution is that injuries to Chacko deceased were caused by the two accused in the circumstances given above. The prosecution in support of its case has examined Joseph Alias PW 2 , Pathrose Luiz PW 13 an Kunjan Krishnan PW 15 as eye witnesses of the occurrence and they have supported the prosecution case as given above. The evidence of these witnesses was accepted by the trial companyrt and the High Court and we see numbercogent ground to take a different view. The presence at the scene of occurrence of two of these witnesses, namely, Joseph, Alias PW 2 and pathrose Luiz PW 13 is admitted even by the two accused. The version of the accused that injuries were caused to Chacko deceased by John accused in exercise of the right of private defence and with a view to save Carlose accused cannot be accepted and both the trial companyrt and the High Court, in our opinion, were fully justified in rejecting that version. Had Carlose accused been attacked by four persons, including one armed with a knife, it is difficult to believe that Carlose would have escaped with four simple injuries, out of which three were of a most insignificant nature. It is also in that event difficult to believe that John would have succeeded in causing as many as 18 injuries to Chacko deceased. The nature of injuries which were found on the body of Chacko show that two kinds of weapons were used and this fact also belies the defence version. The nature of the injuries which were found on the body of the deceased as well as of those on the person of Carlose accused is in companysonance with the prosecution case. It has also been argued by Mr. Lakshminarasu that the statement of Carlose accused which was recorded by Sub Inspector Vijaya Kumar in Government hospital Quilon on October 9, 1970 was number admissible in evidence as it was a statement made to the police by an accused against whom a case under Section 302 Indian Penal Code had been registered. Although there appears to be force in the companytention of Mr. Lakshminarasu regarding the admissibility of that statement at the trial, it is, in our opinion, number necessary to dilate upon this aspect of the matter because the companyviction of the accused-appellants can be maintained without taking into account the said statement. We would, therefore, maintain the companyviction of the accused-appellants. 17 As regards the sentence, we find that there have been two successive trials of the accused-appellants for the offence of the murder of Chacko. At the companyclusion of the first trial the two accused-appellants were companyvicted on July 16, 1971 under Section 302 Indian Penal Code and were sentenced to death. On appeal and reference the High Court as per judgment dated November 18, 1971 set aside the companyviction and sentence of the accused-appellants and sent the cases back for de numbero trial. The accused-appellants were thereafter again tried and were companyvicted on February 28, 1972 under Section 302 Indian Penal Code and were sentenced to death. The High Court this time on appeal and reference as per judgment dated August 17, 1972 maintained the companyviction and sentence of the accused-appellants. It would thus appear that the accused-appellants have had to undergo the ordeal of facing two successive trials for the same offence. Apart from that we find that the circumstances which led to the occurrence also justify the imposition of a lesser penalty. As would appear from the resume of the facts given above, the accused were told by Lily, mother of the first accused and wife of the second accused, that she had been abused by the wife and son of the deceased a companyple of hours before the present occurrence. The food which was taken by Lily for the accused was also thrown by her on the ground. It is apparent that the two accused were very much upset because of what they believed to be an insult of Lily. The remarks of John accused immediately before the present occurrence addressed to Chacko deceased also show that the two accused were smarting under the supposed wrong done to Lily. The above facts thuse reveal that the accused were in grip of an emotional stress when they companymitted the murder of the deceased. Keeping in view the entirety of the circumstances, we are of the opinion that the present is number a case in which the extreme penalty should be exacted from the accused.

B. Sawant, J. The appellant is a firm carrying on business in textiles at Karur. One Ganesh Chander Das of Azim Ganj, West Bengal had visited Karur and selected handloom cloth worth Rs. 53441.93 to be booked by the appellant firm to Azim Ganj City Railway Station. He sent the Parcel Way Bill along with bank demand draft for a sum of Rs. 52,672.93 being the price of the goods supplied less railway freight of Rs. 769/- to the State Bank of India at Jiaganj. He undertook to clear the demand draft by payment to the Bank and take the Parcel Way Bill from the Bank. The appellant booked the cloth at Karur Railway Station for carriage by railway to Azim Ganj on 11.6.1973 under Parcel Way Bill No. 835434 of the same date. The appellant then sent the said Parcel Way Bill and the demand draft to the State Bank of India, Jiaganj. The numbermal time for the goods to reach the destination was less than 30 days. The State Bank of India sent back the demand draft and the Parcel Way Bill to the appellant on 12.9.1973 for the reason that the payment was number forthcoming. Therefore, on 12.9.1973, the appellant addressed a letter to the Station Master, Azim Ganj requesting him to rebook the goods to Karur. Along with the request, the appellant enclosed the original Parcel Way Bill endorsed in his favour and the General Forwarding Note duly signed, to enable the Station Master to rebook the goods to Karur. This letter was acknowledged by the Station Master, Azim Ganj on 18.9.1973. However, he did number reply to the appellant. Thereafter, the appellant sent an Express telegram on 4.10.1973 which was followed by a letter of even date sent by registered post. It appears that in reply, the Station Master, Azim Ganj City Railway Station companymunicated to the appellant on 15.10.1973 that he had already sent a letter dated 27.9.1973 to the appellant in which he had stated that the appellants letter had been forwarded to the Divisional Commercial Suerintendent, Eastern Railway, Howrah and Chief Commercial Superintendent, Eastern Railway, Calcutta and that he had number received any reply from the said officers. The companymunication also stated that the matter would be disposed of as soon as orders were received from the said officers. The appellants then sent telegrams to the Chief Commercial Superintendent and the General Manager, Eastern Railways on 6.10.1973. On 8.10.1973, the appellant addressed further letter to Station Master, Azim Ganj, to the General Manager, Eastern Railway, and the Chief Commercial Superintendent, Eastern Railway by way of reminder. On 9.10.1973, he also gave numberice of claim for Rs. 53,441.93 under Section 78 of the Indian Railways Act hereinafter referred to as the Act to the General Manager Claims , Eastern Railway, Calcutta and to the General Manager Claims , Southern Railway, Madras. In the numberice, it was alleged that the Railway Administration was grossly negligent and misconducted itself and was careless in handling the goods and in number rebooking and delivering the goods back to the appellant. The Chief Commercial Superintendent acknowledged the numberice on 7.11.1973. In the meanwhile, the appellant again sent another letter on 31.10.1973 to the Divisional Superintendent, Eastern Railway, Howrah to return the Parcel Way Bill which had been sent by it to the Station Master, Azim Ganj and which the Station Master had forwarded to the said officer for action. To this letter also, there was numberreply from the said officer. The appellant thereafter filed the present suit claiming from the Railways Rs. 53,441.93 by way of damages. The suit was defended by companytending that the parcels and the Parcel Way Bill were carried by the Railways with due care and caution, and they reached Azim Ganj City Railway Station on 1.7.1973 in good companydition and were made available for delivery for more than seven days. No one turned up for taking delivery of the goods till 20.7.1973. On 21.7.1973, the parcels were taken delivery of by one Sunil Dutta against the Parcel Way Bill produced by him, and against payment of all charges due to the Railways. The appellants request for rebooking of the parcels to Karur was received on 12.9.1973, i.e., about two months after the termination of transit of the goods. The defendants were, therefore, number liable in law for the alleged number-delivery of the parcels that occurred after seven days after the termination of the transit, since the Railways were protected against such number-delivery by the provisions of Section 77 2 of the Act. It was also companytended that there was numbernegligence, misconduct or carelessness on the part of any of its servants. The defendants were also number liable for the fraud practised by the companysignor or the companysignee or their agents. It was further companytended that even assuming that the Railways receipt on which the delivery was effected to the said Sunil Dutta was number a genuine one, the Railways were number liable for the loss which occurred after seven days of the termination of the transit of the goods at its destination. The Trial Court decreed the suit. In appeal by the Railways, the High Court relied upon the provisions of Section 77 2 of the Act which exonerated the Railways of any liability for loss etc. beyond the period of seven days after the termination of the transit, and allowed the appeal and dismissed the suit. In this appeal against the decision of the High Court, the only question to be answered is whether the respondent-Railways can claim the protection of Section 77 2 of the Act for the delivery of goods to a wrong person against a number-genuine railway receipt since the delivery of goods was number taken of for more than seven days after the termination of the transit and the wrong delivery of the goods occurred after the expiry of the said period. Section 77 of the Act reads as follows Responsibility of a railway administration after termination of transit - 1 A railway administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872, for the loss, destruction, damage deterioration or number-delivery of goods carried by railway within a period of seven days after the termination of transit Provided that where the goods are carried at owners risk rate, the railway administration shall number be responsible for such loss, destruction, damage, deterioration or number-delivery except on proof of negligence or misconduct on the part of the railway administration or of any of its servants. The railway administration shall number be responsible in any case for the loss, destruction, damage, deterioration or number-delivery of goods carried by railway, arising after the expiry of the period of seven days after the termination of transit, Notwithstanding anything companytained in the foregoing provisions of this section, a railway administration shall number be responsible for the loss, destruction, damage, deterioration or number-delivery of the goods mentioned in the Second Schedule, animals and explosives and other dangerous goods carried by railway after the termination of transit. Nothing in the foregoing provisions of this section shall relieve the owner of animals or goods from liability to any demurrage or wharfage for so long as the animals or goods are number unloaded from the railway wagons or removed from the railway premises. For the purposes of this Chapter- Unless otherwise previously determined, transit terminates on the expiry of the free time allowed after the arrival of animals or goods at destination for their unloading from railway wagons without payment of demurrage, and where such unloading has been companypleted within the free time so allowed, transit terminates on the expiry of the free time allowed for the removal of the animals or goods from railway premises without payment of wharfage b demurrage and wharfage have the meanings respectively assigned to them in Clause d and Clause h of Section 46-C. It is clear from the provisions of Section 77 2 , that the period of seven days starts on the expiry of the free time allowed for removal of the goods from the railway premises without payment of wharfage. In the present case, under the Rules for Warehousing and Retaining of Goods made under the Act, the said free time was of three days including the day of arrival of the goods. The goods reached the Azim Ganj Railway Station on 1.7.1973. The alleged wrong delivery was effected on 21.7.1973, i.e., 20 days after the goods reached the destination and 11 days from the expiry of seven days after the termination of the transit of the goods. Since the goods were admittedly lost to the appellant on account of the wrong delivery by the Railways when they were in the premises of the Railways, the liability of the Railways would admittedly be as that of a bailee. That is why Section 77 makes a provision for limiting the period of the said liability as a bailee. Sub-section 1 of Section 77 of the Act states that the Railway Administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872 Contract Act for the loss, destruction, damage, deterioration or number-delivery of goods carried by Railways if such loss etc. has occurred within a period of seven days after the termination of the transit of goods. According to this provision, therefore, to entitle a claimant to make claim the liability on account of loss etc. should have arisen within the specified period of seven days after the transit is terminated. However, even this entitlement is qualified by the proviso to the said section which states that if the goods are carried at owners risk rate, the Railway Administration is number responsible even for such loss except on proof of negligence or misconduct on the part of the Railway Administration or any of its servants. Sub-section 2 of Section 77, however, states that where the goods are carried at owners risk rate or otherwise, in numbercase the Railway Administration shall be responsible for the loss etc. after the expiry of seven days from the termination of the transit of the goods. Section 151 of the Contract Act states that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would in similar circumstances take of his own goods of the same bulk and quality and value as the goods bailed. Section 152 provides that the bailee in the absence of any special companytract, is number responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care described in Section 151. Section 161 of the Act provides that, if by the default of the bailee, the goods are number returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction, or deterioration of the goods from that time. It is for this reason that the legislature has taken care to limit the period of the liability of the Railways by providing specifically that numberwithstanding what is companytained in Sections 151, 152 and 161 of the Contract Act, the liability of the Railways as a bailee does number extend beyond the period of seven days after the termination of the transit. We have already pointed out above that taking into companysideration the period of free time allowed for the removal of the goods in question, the liability of the Railways extended only upto 10th July, 1973. Since admittedly the goods were wrongly delivered or delivered against a number-genuine receipt on 21.7.1973, the absolute bar created by Section 77 2 for claiming damages against the Railways had companye into operation at the end of the 10th July, 1973. In the present case, the appellant had retained the ownership in goods with it since the goods were number to be parted except on the presentation of the Parcel Way Bill and the payment of the bank demand draft. It was expected to know when the goods would reach the destination Railway Station, viz., Azim Ganj Railway Station. In any case, it was expected to keep itself informed about the arrival time of the goods at the said destination. As stated earlier, the goods arrived at the destination railway station on 1.7.1973. It ought to have, therefore, taken precaution to see that the goods were lifted by it or its agents or its companysignees during the said period. In any case, after the expiry of the said period when the appellant companyld have learnt that the goods were number lifted by the companysignee, it was its duty to take prompt steps to remove the goods itself or through its agents. As pointed out above, the appellant-firm moved into the matter only on 12.9.1973, i.e., about two months after the expiry of the period of liability of the Railways. Since, admittedly a wrong delivery or loss of the goods in the present case was number during the transit of the goods, provisions of Sections 72 and 73 of the Act would number be applicable to the facts of the present case. Hence the decision of this Court in Union of India v. W.P. Factories would be inapplicable. It may, however, be pointed out that in that case the responsibility of the Railways under Section 72 of the Act was under companysideration and it was held that that responsibility cannot be cut down by any rule.

B. SINHA, J. Whether in the facts and circumstances of this case, the respondent herein was entitled to seniority on the basis of his Commissioned Service in the Army is the question involved in these appeals which arises out of the judgment and order dated 8.02.2002 passed by the Lucknow Bench of the High Court of Judicature at Allahabad in Writ Petition No. 1754 SB of 2000. The Governor of the then United Province number the State of Uttar Pradesh in exercise of his power under Section 241 of the Government of India Act, 1935 framed U.P. Police Service Rules, 1942 for short the 1942 Rules . The terms and companyditions of the services of the employees including recruitment thereto are governed thereby. Rule 21 of the 1942 Rules reads as under Seniority in the Service shall be determined according to the date of the order of appointment in a substantive capacity and if two or more candidates are appointed on the same date, their seniority inter se shall be determined according to the order in which their names appear in the order of appointment Provided that- The inter se seniority of direct recruits selected in one batch shall be determined according to their merit at the selection but a candidate may lose his seniority if he fails to join without sufficient reasons when appointment is offered to him and the decision of the Governor as to the sufficiency of the reasons shall be final The inter se seniority of the promotees, selected at one selection, relating to one particular year of recruitment shall be determined according to their seniority in the post from which they are promoted Vacancies are required to be filled on every occasion both by direct recruitment and promotion and the inter se seniority of persons appointed by promotion and direct recruitment against the vacancies of a particular year, shall be determined by arranging their names alternatively, the first name being of the person appointed by promotion, and placing the names of the remaining persons below en bloc. Explanation.- A direct recruit will number be entitled to seniority of the year earlier to the year of his recruitment solely on the ground that there had been numberrecruitment in that year. The said Rule upon companying into force of the Constitution of India, companytinued to remain in force in terms of Article 372 of the Constitution of India. The President of India proclaimed Emergency on 1.11.1962 under Article 352 of the Constitution of India companysequent upon the Chinese aggression. On account of grave threat to the security of India, a large scale recruitment of officers was to be made therefor. To answer the call of the nation, a large number of young persons gave up their softer career options and got themselves recruited to the Armed Forces of the Union of India to serve the motherland. The Emergency so proclaimed was revoked on 10.01.1968. The Governor of U.P. on or about 29.03.1968 framed rules known as U.P. Non Technical Class-II Services Reservation of Vacancies for the Demobilized Officers Rules, 1968 for short the 1968 Rules for a period of five years whereby and whereunder inter alia reservation to the extent of 20 of the vacant posts were companyceived for demobilized officers who had been companymissioned in the Armed Forces during the Emergency. For the said purpose, relaxations were also made in certain areas. Rule 4 of the 1968 Rules provided grant of seniority to such demobilized officers by raising a legal fiction, subject however to the companydition, that they would be deemed to have entered service at their second opportunity of companypeting for recruitment. On or about 3.12.1971, in the wake of Indo-Pak war with regard to Bangaldesh imbroglio, another external Emergency was proclaimed. A large scale recruitment was also made to Short Service and Emergency Commission wherein again many young persons opted to join the Armed Forces of the Union of India. The Governor of U.P. on or about 6.08.1973 framed rules known as U.P. Non Technical Class-II Services Reservation of Vacancies for the Demobilized Officers Rules, 1973 for short the 1973 Rules companytaining similar provisions. However, the extent of reservation was reduced from 20 to 10. The benefit of the 1973 Rules was extended only to those officers who were companymissioned between 1.11.1962 to 10.01.1968 and upto those who joined on or after 3.12.1971 and released at any time thereafter. The 1973 Rules were made applicable for a limited period of five years. It expired on 5.08.1978. It appears that a GO bearing No. 2003 was issued by the Government of U.P. on 20.08.1977 providing for reservation to the extent of 8 only which was eventually reduced to 2 in Class - II and Class - III Services of the State Government. A new set of Rules known as U.P. Non Technical Class - II Group B Services Appointment of Demobilized Officers Rules, 1980 for short the 1980 Rules was made by the State on or about 19.08.1980 for the purpose of regularizing the appointments of demobilized officers whose selection process had been companymenced or companycluded under the 1973 Rules but appointments had number been made before the expiry thereof. Indisputably, the 1980 Rules do number companytain any provision in regard to reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India. Interpretation and or application of the said Rules and the precedents operating in the field are required to be companysidered in this case in the aforementioned backdrop. A process of selection started in the case of the respondent in the year 1973 in the Engineering Corps of the Indian Army. He was selected therefor. He joined the pre-commissioned training on 18.05.1978 and was companymissioned as an officer of the Indian Army only from 17.03.1979. In the meanwhile, Emergency was lifted on 27.03.1977. He was discharged from the Indian Army on 18.05.1988. Pursuant to the selection in respect of the vacancies which arose in the year 1984, he joined U.P. Police Service as an ex-Army officer against 8 vacancies reserved for such ex-Army persons in terms of the aforementioned GO dated 20.08.1977. We may numberice that interpretation of the 1968 Rules as also the 1973 Rules came up for companysideration before this Court in Narendra Nath Pande and Ors. v. State of U.P and Ors., 1988 3 SCC 527, wherein it was held There is a question of companypeting in the examination. Rule 6 does number provide for any gap to be taken into companysideration, yet it is apparent that some reasonable period has to be allowed to a candidate so as to enable him to avail himself of the opportunity of appearing at the companypetitive examination for his recruitment in the Provincial Civil Service. It cannot be gainsaid that to companypete in the examination, a candidate has to make preparation for that. Competitive examinations are generally difficult and, in our opinion, at least two years time should be allowed to a candidate, after his discharge, for his preparation for the companypetitive examination and that will be his first opportunity. The second opportunity will arise in the next year, that is, in the third year of his discharge from the armed forces. In other words, he should be allowed three years or companypeting in the relevant examination for recruitment in the civil service. Even after he becomes successful, he is number recruited immediately. There is the question of availability of vacancies and posting. It is companymon knowledge that some time is taken for posting. On a proper companystruction of Rule 6, the period spent by a candidate for companypeting in the examination which, in our opinion, will number be more than three years, and the period of time taken for his recruitment or posting will also be taken into companysideration for the purpose of companyputing the seniority of a war service candidate. Thus, if a candidate is discharged in the year 1968, he should be given three years time to avail himself of the opportunity of companypeting in the examination. Suppose, he is successful in the examination held in 1971 and posted in 1973. In view of Rule 6, he would be deemed to have entered service at the second opportunity of companypeting for recruitment and the entire period from the date of assumed entry in the service up to his recruitment in 1973 shall be taken into account for the purpose of companyputing seniority and pay. If, however, a candidate does number avail himself of the opportunity within three years of his discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will number be taken into account for the purpose of companyputing the seniority. Rule 6 should be given a reasonable interpretation Yet again, the question in regard to determination of seniority of the Deputy Superintendents of Police in terms of Rule 21 of the 1942 Rules came up for companysideration before this Court in Rana Randhir Singh and Ors. v. State of U.P. and Ors., 1989 Supp. 1 SCC 615. With a view to meet the requirements of the judgment of this Court in Narendra Nath Pande supra , the 1980 Rules were amended in terms whereof Rule 5 was applied limiting to three years maximum seniority over and above the seniority given for the period served by the candidate in the Armed Forces. Diverse Rules were again framed with which we are number companycerned at this stage, but we may numbere that by U.P. Act No. 29 of 1999, reservation in favour of the ex-servicemen in Group A and B Services in the State of U.P. was abolished. Respondent was placed at Serial No. 137 in the seniority list as belonging to the 1984 batch as a direct recruit. Shri Surendra Singh Negi, a direct recruit of the 1976 batch was placed at Serial No. 14. Respondent made a representation to give to him the benefit of the 1980 Rules, which was rejected by the State Government by an order dated 14.09.2000 stating that he joined the Indian Army after the expiry of the Proclamation of Emergency he cannot be companysidered as a demobilized candidate after the expiry of the 1973 Rules The 1980 Rules had limited applicability, viz., only to those officers whose selection process had companymenced and companycluded prior to 6.08.1978. Respondent aggrieved thereby filed a writ petition before the Lucknow Bench of the High Court of Judicature at Allahabad. Those who were above him in the seniority list, being 118 in number and who would have been affected if a relief had been granted, were, however, number impleaded as parties in the said petition. We may furthermore numberice that on 19.12.2000, the Uttar Pradesh Non- Technical Class - II Group B Services Appointment of Demobilized Officers Second Amendment Rules, 2000 for short the 2000 Rules were framed. These Rules have been given retrospective effect, i.e., from 6.08.1978. However, on 3.02.2001, the State made third amendment in the 1980 Rules restoring the original position prevailing before companying into force of the 2000 Rules as the said Rules were held to be illegal having been framed in violation of the judgment of this Court in Ram Janam Singh State of U.P. and Anr., 1994 2 SCC 622. By reason of the impugned judgment, the said writ petition has been allowed. The learned companynsel appearing on behalf of the appellants and the intervenor, would, in support of these appeals, inter alia submit The 1980 Rules cannot be said to be retrospective in nature number the same is in companytinuation of the 1973 Rules and in that view of the matter, the High Court companymitted a manifest error in passing the impugned judgment. The 1980 Rules have a limited application insofar as the same sought to protect only those officers in whose cases the recruitment process started in the year 1973 and were number applicable in the cases of those who were recruited after it came into force. Whereas the 1973 Rules provided for reservation, the 1980 Rules did number provide for any, save and except to a limited extent and, thus, the same companyld number be applied in the case of the respondent. Respondent was recruited against the vacancies which arose in the year 1984 only in the year 1988 and, thus, having been appointed in the States service only on 17.03.1979, the 1980 Rules or the 1973 Rules companyld number have any application in the case of the respondent. The Seniority was given only to the Emergency Commissioner officers. In view of the decision of this Court in Ram Janam Singh v. State of U.P. and Another 1994 2 SCC 622, wherein law has been laid down as to who would get the benefit of the 1980 Rules, the impugned judgment must be held to be bad in law. Mr. Nagendra Rai, learned senior companynsel appearing on behalf of the respondent, on the other, submitted Respondent was selected in 1976 and having been given seniority during the period of Emergency, the 1973 Rules, as incorporated by reference, the 1980 Rules will apply. In view of the decision of this Court in Dilbag Singh v. State of P. and Ors., 1995 4 SCC 495 as well as that of a 3-Judge Bench of this Court in Mahesh Chand and Ors. v. State of U.P. and Ors., 2000 10 SCC 492, Rule 5 of the 1980 Rules must be held to have a wider application and would also companyer cases where the 1973 Rules would apply. In any event, the respondent having acquired a vested right in terms of the 1973 Rules, the impugned judgment should number be interfered with. Admittedly, the 1968 Rules governed the field during the period November, 1962 and January, 1968, but the same would have numberapplication in the instant case. Applicability of the 1973 Rules is in question. The said Rules, as numbericed hereinbefore, remained in force only for a period of five years from the date of its companymencement, i.e., 6.08.1973. Rule 3 of the 1973 Rules provided for reservation of vacancies inter alia for those who were Emergency Commissioned Officers before 10.01.1968 and again on or after 3.12.1971. The 1980 Rules defined demobilized officers in the following terms Demobilised Officer means Disabled defence Service Officer, Emergency Commissioned Officer and the short service companymissioned officer, of the Armed Forces of the Union who was companymissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter. Rule 4 of the 1980 Rules provided for appointment stating Appointment .-A person selected for appointment to a number-technical Class II Group B service or post against the vacancies reserved for demobilised officers, as a result of recruitment, the process of which was companycluded or companymenced prior to August 6, 1978, in accordance with the provisions of the Uttar Pradesh Non-technical Class II Services Reservation of Vacancies for Demobilised Officers Rules, 1973 hereinafter to be referred to as the said rules , shall be eligible and be companysidered for appointment against the vacancies reserved for demobilised officers under the said rules Provided that the reserved vacancies shall be utilised first for the appointment of disabled defence service officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other emergency companymissioned officers and short service companymissioned officers. Explanation-The numberification of vacancies or the advertisement thereof by the Commission shall, among others, be a process of recruitment within the meaning of this rule. Rule 5 of the 1980 Rules provided for seniority and pay of persons appointed against the vacancies referred to in the 1973 Rules, the relevant portion whereof reads, thus Seniority and pay.- 1 Seniority and pay of persons appointed against the vacancies referred to in the said rules shall be determined on the assumption that they entered the service companycerned at the second opportunity of companypeting for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant companypetitive examination Seniority may number be a fundamental right, but is a civil right. See Indu Shekhar Singh and Ors. v. State of U.P. and Ors., 2006 8 SCC 129, Bimlesh Tanwar v. State of Haryana and Ors., 2003 5 SCC 604 and Prafulla Kumar Das v. State of Orissa, 2003 11 SCC 614 Infringement of the said right would be permissible only if there exists any rules validly framed under a statute and or the proviso appended to Article 309 of the Constitution of India. It cannot act in a vacuum. Any rule taking away such rights would deserve strict companystruction. The 1968 Rules, the 1973 Rules and the 1980 Rules were framed with a view to encourage young men to join Indian Army. They were made with a view to meet particular exigencies. Whereas the 1968 Rules and the 1973 Rules were primarily made for providing reservation to vacancies for demobilized officers, the 1980 Rules sought to achieve a different purpose, as it does number provide for any reservation. Whereas Rule 3 1 of the 1973 Rules provided for reservation of 10 to the Emergency Commissioned or Short Service Commissioned officers who were companymissioned during the period mentioned therein, Rule 4 thereof companyferred benefit on persons appointed only in that category. Benefit of seniority and pay was to be extended on such employees on assessment of their second opportunity of companypeting. Such second opportunity was to be companynted from the date of birth in respect of minimum age for companypeting. The State made the said provision only for a section of employees who might have intended to sacrifice their soft career during the period of Emergency as recruitment process in their case might have started during the period when the 1973 Rules were in force but companyld number be companypleted. The 1980 Rules seek to give limited retrospective effect by companyferring benefits in regard to appointment to the reserved post for the demobilized officers whose process of recruitment was to be companypleted or companymenced before 6.08.1978 in accordance with the 1973 Rules. Rule 5 of the 1980 Rules, however, is in pari materia with Rule 6 of the 1973 Rules. Respondent had never companytended that his case was governed by the 1973 Rules. He proceeded on the basis that only because the process of selection started in the year 1975, and he having been selected when the 1973 Rules were applicable, his case for recruitment did number companye within the purview of the reserved category of candidates as envisaged under the 1973 Rules which, it will bear repetition to state, was in force only upto 5.08.1978. Submission of Mr. Rai that the respondent having joined the precompanymissioned training in 1976 would be entitled to the benefit of the 1973 Rules or thereby rights were accrued to him, in our opinion, has numbermerit. The 1980 Rules, as numbericed hereinbefore, only have a limited operation by regularizing appointments of demobilized officers whose selection process had been companymenced or companycluded under the 1973 Rules but appointments had number been made before the expiry thereof. There was numberprovision for reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India. The 1973 Rules was a temporary statute. It died its natural death on expiry thereof. The 1980 Rules does number companytain any repeal and saving clause. The provisions of the relevant provisions of the General Clauses Act will, thus, have numberapplication. Once a statute expires by efflux of time, the question of giving effect to a right arising thereunder may number arise. In any event, in this case, numbersuch right accrued to the respondent. Reservation to the extent of 2 might have been fixed by reason of a Government Order issued in the year 1977 but the same had numberhing to do with the 1973 Rules or with the 1980 Rules. Provision for reservation made in general by the State in exercise of its executive power companyld number have companyferred a benefit in terms of the provisions of a rule which seeks to apply to a particular category of employees in the service. The 1980 Rules neither repealed number replaced the 1973 Rules. The question of companytinuation of the 1973 Rules by the 1980 Rules, thus, did number and companyld number arise. The 1980 Rules provided for a new set of rules. They were to have a limited application, viz., regularization of appointment of demobilized officers. Not only the numberenclature of the 1980 Rules is different from that of the 1973 Rules, the purport and object is also different. Whereas the 1973 Rules provided for reservation of vacancies for the demobilized officers, the 1980 Rules provided for appointment of demobilized officers to a limited category of employees. The 1980 Rules to the aforementioned effect has been given a retrospective effect, i.e. from 6.08.1978 only for achieving the said purpose numbericed hereinbefore. By reason thereof, thus, the 1973 Rules had number been kept alive. We may at this juncture numberice that Lahoti, J. as the learned Chief Justice then was in Ramji Purshottam Dead by LRs. And Ors. v. Laxmanbhai D. Kurlawala Dead By LRs. And Anr., 2004 6 SCC 455 stated Justice G.P. Singh states in Principles of Statutory Interpretation 9th Edn., 2004, at p. 462 - The fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts does number necessarily make the provision retrospective. the rule against retrospective companystruction is number always applicable to a statute merely because a part of the requisites for its action is drawn from time antecedent to its passing. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha the Constitution Bench held that Bombay Act 57 of 1947 is a piece of legislation passed to protect the tenants against the evil of eviction. And the benefit of the provisions of the Act ought to be extended to the tenants against whom the proceedings are pending on the date of companying into force of the legislation. In Dilbag Singh supra , whereupon strong reliance has been placed by Mr. Rai, the appellant therein was companymissioned on 22.09.1974 and in the aforementioned situation, it was held that the selection process having started after 1973 and he having been appointed during the period when the 1973 Rules had been into force, by reason of Rule 5 of the 1980 Rules, the 1973 Rules must be deemed to be in operation till then. The decision of this Court in the fact of that case may be companyrect but then it is distinguishable in the sense that in the instant case the respondent had joined Commissioned Service only in the year 1979. Whether he was selected as a companymissioned officer or whether he had undergone pre-commissioned training is number relevant for applicability of the 1980 Rules. What was relevant is as to from which date he became a Commissioned Officer. If he became a Commissioned Officer only after 5.08.1978, i.e., after the expiry of the 1973 Rules, the question of his getting any benefit under the 1973 Rules would number arise. The same principle has been reiterated in Mahesh Chand supra wherein this Court held The scope of Rule 5 is wider. It regulates the seniority and pay of persons appointed against vacancies referred to in the 1973 Rules. Therefore, while it may companyer those who are appointed under Rule 4, it also companyers all others who are appointed against vacancies referred to in the 1973 Rules. That being so, the judgment in the case of Dilbag Singh which companystrued Rule 5, does number require reconsideration on the ground that Rule 4 was omitted from companysideration. It is, therefore, evident that the 1980 Rules would companyer only those persons who were appointed against the vacancies referred to in the 1973 Rules and number those who joined much later. The purport for which such benefits had been given has been companysidered in Ram Janam Singh supra , wherein it has been held Can it be said that the persons who had joined Army after the declaration of emergency due to foreign aggression and those who joined after the war came to an end stand on the same footing? Those who joined Army after revocation of emergency joined Army as a career. It is well known that many persons who joined army service during the foreign aggression, companyld have opted for other career or service. But the nation itself being under peril, impelled by the spirit to serve the nation, they opted for joining Army where then risk was writ large. No one can dispute that such persons formed a class by themselves and by rules aforesaid an attempt has been made to companypensate those who returned from war if they companypete in different services. According to us, the plea that even persons who joined army service after cessation of foreign aggression and revocation of emergency have to be treated like persons who have joined army service during emergency due to foreign aggression is a futile plea and should number have been accepted by the High Court. It need number be impressed that whenever any particular period spent in any other service by a person is added to the service to which such person joins later, it is bound to affect the seniority of persons who have already entered in the service. As such any period of earlier service should be taken into account for determination of seniority in the later service only for some very companypelling reasons which stand the test of reasonableness and on examination can be held to be free from arbitrariness. Respondent in this case admittedly joined the services after the Emergency was over. Furthermore, he joined the State service only in the year 1988 when the 1980 Rules ceased to have any force.

D. Dua, J. These two civil appeals by special leave Nos. 901 and 902 of 1966 are directed against the judgments and orders of the Mysore High Court at Bangalore dated June 30,1964 and October 30, 1964 respectively. By means of the judgment and order dated October 30, 1964 the High Court rejected applications for review of its order dated June 30, 1964. Civil Appeal No. 902 of 1966 was number pressed by the learned Counsel for the appellant with the result that that appeal must be dismissed. We make numberorder as to companyts in that appeal. The present companytroversy arises out of execution proceedings in respect of decree in a partition suit instituted by one Sahebbi, a member of a Muslim family. The suit was Instituted by her for partition by metes and bounds and for possession of her share in the property left by her grandfather Mirsab. It would be helpful at this stage to reproduce the pedigree table of the family Original Ancestor MIRASAB Hafix Saheb Hussainsab Hajaratsab deceased deceased 1st Defdt. Isamohiddin Abdul Karim Shajadbi Saheb Bl 2nd Defdt. 3rd Defdt. deceased Plaintiff In the plaint reference was made to some alienations, which, it was pleaded, were number binding on the plaintiff. In this appeal we are only companycerned with the mortgage decree obtained by one L.B. Pinto original defendant No. 12 in the suit on whose death A.J. Pinto appellant No. 1 in this Court was impleaded as defendant No. 12-A in his capacity as legal representative of the deceased. The said mortgage decree was stated to have been obtained by defendant No. 12 against Hajaratsab, defendant No. 1 in respect of some land situated in Gabbur village of Rubli taluk and R.S. 48/1 situated at Krishnapur. The suit for partition was initially instituted in forma pauperis in 1939. At that time the mortgage decree in favour of defendant No. 12 was being executed and an injunction restraining him from executing the decree and from taking possession of the property was also sought. Defendant No. 12 and after his death, defendant No. 12-A resisted the plaintiffs suit assailing the mortgage decree. It appears that the mortgaged property was sold but it did number fetch sufficient funds to satisfy the full claim under the mortgage decree with the result that Pinto secured a personal decree against Hajratsab and in execution of that decree sought to sell certain properties belonging to the estate of Mirsab. On objection to the sale in execution of the personal decree being raised by the plaintiff, the Court made an order that the properties sought to be proceeded against be sold but the sale would be subject to the result of the partition suit. It was further directed that in the proclamation of sale the fact of the pendency of the partition suit be also mentioned. That sale, it seems, was held sometime in 1942. On November 16, 1942 a sale certificate in respect thereof was issued in favour of Pinto. According to that sale certificate Pinto was declared as purchaser of the right, title and interest of Hajratsab in the various properties described therein. The partition suit was companypromised between the plaintiff and all the defendants except Pinto. The Civil Judge, Senior Division, Dharwar to whose Court the suit was transferred sometime in 1948 took the view that even though Pinto was number a party to the companypromise between the plaintiff and the other defendants the companypromise was number unfair and there being numberequity in favour of Pinto who had purchased the right, title and interest of Hajaratsab in the suit property subject to the result of the suit, a decree should be passed in terms of the companypromise against all the defendants including Pinto. An appeal was preferred against this decree by the appellant and a learned single Judge of the Bombay High Court on July 26, 1954 set aside the decree as against Pinto and remanded the case back to the trial Court with the direction that the suit be proceeded with in accordance with law. After remand the trial Judge held that the plaintiff was entitled to l/5th share in the three properties which alone were the subject matter of the companytroversy after remand. She was held entitled to claim 1/5th share from the present appellant in R.S. No. 104/4 of Gabbur village in R.S. No. 45/4 of Krishnapuram village and in G.T.S. No. 3540 of Hubli. The partition and possession of the two pieces of land were to be effected through the Collector and that of the site in Hubli through a companymissioner to be appointed by the Court in the proceedings for passing the final decree. The Collector was directed to effect the partition in the two pieces of land so as number to companyflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act No. LXII of 1947. The appellant was to pay the past and future mesne profits from the date of the cause of action mentioned in the plaint till the date of the decree or till the delivery of possession, whichever might be earlier, at the rate to be determined under Order 20, Rule 12, C.P.C. in respect of the plaintiffs l/5th share in the three properties. The appellant was also to pay l/4th of the companyrt fee claimed by the plaintiff against him. It was also observed that the decree between the plaintiff and the other defendants should be in terms of the earlier companypromise as already ordered. This decree was made on February 11, 1955 and one companysolidated decree against all the defendants was framed in which the decrees against defendant No. 12-A and the other defendants were distinctly specified. Against this judgment and decree the appellant preferred an appeal to the High Court of Mysore at Bangalore. A Bench of that Court on December 13, 1961 dismissed the appeal. It appears that an attempt was made there to raise some points in respect of properties other than the three properties which were the subject matter of the decree appealed from. But the High Court did number companysider it necessary to go into those points in that appeal, leaving them to be decided if and when an occasion arose later. The High Court was quite clearly of the opinion that the plaintiff had secured a decree against the appellant in respect of the three properties mentioned in the decree and it was observed that the appellant had numbergrievance as regards any of the reliefs granted to the plaintiff by that decree. The present companytroversy arises out of the proceedings in respect of the execution of the decree dated February 11, 1955 affirmed by the Mysore High Court and it is companymon ground that number the companytroversy is companyfined to the properties described as G.T.S. 3547 to 3549-A houses let by Pinto, appellant No. 1 to Dawood Mirza, appellant No. 2 and property No. 1122 house sold by Pinto to Beopari respondent No. 2 . These properties are described by the parties as lot No. 1. The remaining properties described as lot No. 2 also claimed by the appellant are number in dispute in this appeal. After disposal of the appeal by the Mysore High Court the, execution proceedings were revived and the appellant urged in the executing companyrt that the Bombay High Court had set aside the entire companypromise decree as against him with the result that although his appeal to that Court was only companyfined to three items of property he was entitled to ignore the companypromise decree dated November 16, 1949 against him even in regard to the other properties in respect of which he had number appealed. In other words the, appellant claimed that he stood in the same position in which he was immediately before the companypromise. This plea was rejected with the observation that there was numberdispute after remand as regards the disputed properties viz., G.T.S. Nos. 1122-B, 3547, 3547A, 3548A, 3549 and 3549A. That Court expressed its opinion after hearing the argument on behalf of the appellant that the revised judgment passed on 11th February 1955 companyers the disputed properties as well. The appellant was accordingly held liable to hand over possession to the plaintiff who was entitled to get actual possession. The final companyclusions so far as relevant were expressed in these words The plaintiff has already been put in possession of the property on 23-9-1962. In an earlier stage of the present execution proceedings it was ordered that the delivery of possession effected on 23-9-1962 should be struck down and judgment debtor No. 12-A should be restored to the possession of the properties from which he has been dispossessed. However, judgment-debtor No. 12-A has number been restored to the possession of the disputed properties. The plaintiff companytinued in possession of them. Even so, a warrant for delivery of actual possession of the properties to the plaintiff under Order 21, Rule 35 of the Civil Procedure Code will issue. The plaintiff has recovered money in execution of the warrant already issued. She has, however, credited Rs. 302.57 into the Court on 27-8-1963. She will be at liberty to withdraw those money from the Court. There is, therefore, numberneed to issue any further warrant in that behalf. The result, therefore, is the companytentions of judgment-debtors Nos. 12A, 12-B and 12-C have to be overruled. The following order is passed. ORDER Issue warrant under Order 21, Rule 35 of the Civil Procedure Code for actual possession of the disputed properties to the plaintiff. This order is dated 19th December, 1963. It was appealed against in the Mysore High Court but without success. A Bench of that Court dismissed the appeal on June 30, 1964, In the companyrse of the judgment it was observed Although the judgment of the High Court of Bombay stated that-the decree in so far as it affects Pinto was set aside and the suit was remitted to the Civil Judge for being disposed of according to law in the light of the observations made in the judgment of the High Court, when the matter went back to the Civil Judge it was assumed, and in my opinion very rightly, that what was set aside by the High Court of Bombay was only that part of the decree by which the properties in lot 2 were allotted to the plaintiff. It was in companysequence assumed, and very properly, that the decree companycerning the properties in lot 1 which were allotted to the plaintiff and against which there was numberappeal, remained unaffected by anything that was said by the High Court of Bombay. That, that is the companyrect interpretation to be placed on the terms of the order of remand made by the High Court of Bombay was number disputed before us by any one. It was companymon ground during the arguments before us that the decree of the Civil Judge allotting the properties in lot 1 to the plaintiff remained Intact and operative even after the decision of the High Court of Bombay In appeal. The Bench, after an exhaustive discussion, also held that there was a merger of the provisions of the decree of 1949 in the decree passed in 1955. The Court said that the Civil Judge had companysidered it companyvenient and appropriate to bring into the decree which he made in the year 1955 the earlier decree which had been made In the year 1949 so that the decree companyld reflect the companybined effect of the first judgment and the revised judgment. I am number prepared to say that what was done by the Civil Judge was number within his companypetence. That Court also observed Pinto who purchased the properties in the execution sale was clearly bound by the ultimate decision in the suit, and if he was so bound it does number require much persuasion to say that the purchaser from him is equally bound. . That is what in my opinion we should say on the basis of the direction made by the Civil Judge and the statement companytained in the sale proclamation quite apart from the provisions of Section 52 of the Transfer of Property Act. The appellant and Dawood Ahmed Mirza tried to seek review of this order but without success. The High Court, after going into the merits did number find any error apparent on the face of the record justifying a review and rejected the two applications on October 30, 1964. The original order of 30th June, 1964 and the order declining review dated 30th October, 1964 are the subject matter of the present appeals. As already observed, the appeal from the order made on review was number pressed by Shri Bishan Narain. In so far as the other appeal is companycerned the main argument addressed by Shri Bishan Narain is that under the Mohammaden law there companyld be a partial partition and that, therefore, in the partition suit all joint properties need number have been taken Into account. The companynsel added that the plaintiff had a decree only in respect of three properties against the appellant and in execution of that decree the appellant companyld number be dispossessed of the other properties in respect of which there may have been a decree against the other defendants on the basis of companypromise, in 1949. This argument presupposes that the Bombay High Court had companypletely set aside the companypromise even in regard to the properties other than the three properties which alone were the subject matter of that appeal. We have number been persuaded to so hold and indeed the subsequent history of the litigation does number support this companytention. That being the position the decree in respect of the properties other than the three properties which were the subject matter of the decree dated February 11, 1955 must be held to be final and binding on the appellant numberwithstanding the fact that the decree in respect of those properties was again incorporated in the decree of February 11, 1955 so that the companysolidated decree may reflect the companybined effect of the final decision of the companytroversy in the suit. Shri Bishan Narain indeed companyceded that once we hold that the order of the Bombay High Court remanding the case to the trial Court did number set aside the entire companypromise decree and that the decree of 1949 in respect of the other properties became final though its terms were repeated in the decree of February, 1955 then he has numbercase The question whether under Mohammaden law there can be partial partition does number arise for determination on the view taken by us regarding the scope of the present companytroversy between the parties. We, therefore, express numberopinion on this point. A faint attempt by the appellants companynsel to appeal to us on equitable companysiderations was met on behalf of the respondent by Shri Tarkunde by the submission that the appellant had taken the properties very cheap at public auction because of the pendency of the litigation and of the mention of this fact in the sale proclamation itself. The auction sale being subject to the result of the litigation the properties would in all probability have been auctioned at a very low price.

V.RAVEENDRAN, J. Leave granted. The Government of Punjab issued a prospectus numberification dated 17.3.2008 for short the Prospectus regarding admission to post graduate degree diploma in Medical Dental Courses for the year 2008. Clause 14 relates to allocation of seats and relevant portions thereof are extracted below In the Government institutions, 50 of the total seats in every such institution shall be filled by the Government of India on all India basis through an all India Competitive Entrance test. The remaining seats shall be filled through the Post Graduate Entrance Test - PGET . Out of the remaining seats, 60 seats shall be filled up from amongst the eligible PCMS PCMS Dental PDES in service doctors and 40 shall be open to all eligible medical dental graduates. For 60 seats In service PCMS PCMS Dental PDES The test shall be open to the candidates who have companypleted a minimum of three years rural service in PCMS PCMS Dental or a minimum of three years Education Service. x x x All PCMS PCMS Dental PDES doctors who are selected for admission to Post Graduate companyrses under 60 quota shall have to produce a No Objection Certificate from the Director, Health and Family Welfare Director, Research Medical Edcuation, Punjab, as the case may be before joining the companyrse in accordance with instructions issued by the department of Health Family Welfare vide memo No.26/12/94- 5HB2/9990 dated 13/5/96 and any other instruction issued by Punjab Government. For 40 Seats- Medical Dental graduates who are residents of the State of Punjab as per instructions of Department of Personnel PP-II Branch companyveyed vide letter number1/3/95-3PPII/9619 dated 6/6/1996 and No.1/2/95-3PPII/81 dated 1/1/1999. Any candidate in State Government employment shall produce a No Objection Certificate from his her employer. The Government Circular Memo dated 13.5.1996 referred to in clause 14 xi of the Prospectus companytains the policy regarding issue of No Objection Certificate NOC for short . The relevant portions thereof are extracted below 1.1 The regular PCMS doctors having 3 years rural service including Adhoc service would be eligible for admission in diploma PG companyrses in State Medical College against 60 quota. xxxx As per the numberification issued by the Medical Education and Research Department, the candidates who are selected against 60 quota would be companysidered to be on deputation during the companyrse, but number be paid any deputation allowance. On companypletion of the companyrse, the doctor would be reverted to PCMS cadre Those doctors who do number fulfill the companydition as mentioned in para No.1 in case they are selected for diploma PC companyrses would be given admission against the 40 quota. These doctors would have to resign from the job in order to join the diploma PG companyrses in Medical Colleges of the state. Those doctors who were selected for post graduation Super speciality would have to fill the bond for government service for five years as follows For PG companyrse Rs. 2 lacs For super speciality companyrse Rs. 3 lacs If the doctors do number serve the government for the above mentioned period, he would have to return the above mentioned amount to the government. xxxx The PCMS doctors who are selected against 40 quota would number be issued any No Objection Certificate by Director health and family welfare. emphasis supplied The said circular dated 13.5.1996 was amended by government Circular dated 30.7.2007. Clause 2 of the amendment Circular required the inservice doctors who are selected for doing post graduate companyrses to give a bond for Rs.10 lacs undertaking to render government service for 10 years instead of a bond for Rs.2 lacs for five years service earlier prescribed and that if the candidate does number serve the government for the full period, he will have to give double of the amount of bond money to the government. The first respondent in each of these appeals is an in-service PDES doctor. They applied for admission to the 2008-2011 post graduate companyrses. They obtained and produced provisional No Objection Certificates, along with their applications. The results of Entrance Examination 2008 were declared on 27.4.2008 and in the ensuing companynselling at the Baba Farid University on 12th and 21st May, 2008, they were selected and admitted to different Post Graduate Courses in General Category in the 60 quota for in-service candidates. Dr. V.K. Khullar was selected for MD Social and Preventive Medicine , Dr. G.S. Dhaliwal was selected for MD Skin D. and Dr. Kamal Kishore for MD Anesthesiology . When they sought No Objection Certificates which had to be produced, the department found that all of them were due to retire within 5 to 12 years and companyld number render the required minimum companypulsory service for ten years after companypleting the three year Post Graduate Course. Therefore, the No Objection Certificates were number issued. The said three candidates filed writ petitions in the Punjab Haryana High Court, praying for issuance of direction to the appellants herein, to issue NOCs to them to enable them to join the post graduate Medical companyrse and also sought a direction to the Government Medical College, Amritsar to permit them to join their respective companyrses. The High Court by three short identical orders disposed of the writ petitions with a direction to the Appellants the Principal Secretary, Department of Medical Education Research, Punjab and Director, Health Family Welfare, Punjab to verify the provisional NOCs issued to the writ petitioners within two weeks with a further direction to permit the writ petitioners to companytinue their studies. The said orders are challenged in these appeals by special leave. The appellants companytend that as the three writ petitioners were number issued NOCs, the High Court ought to have companysidered the reason for numberissue of NOC instead of permitting the three writ petitioners to join their companyrses or companytinue their studies. It is companytended that only those in-service candidates who had sufficient service and who were in a position to furnish a bond undertaking to serve for a period of 10 years companyld be selected for the PG companyrses and that the three writ petitioners were number eligible for getting the NOCs as they did number have ten years service after companypletion of the companyrse. The appellants submitted that the provisional NOCs issued to the three writ petitioners were declared invalid after verification as they did number companyply with the requirement of the circular dated 13.5.1996 as amended by circular dated 30.7.2007. The appellants submitted the following service particulars of the three candidates Sl. Name of Doctor Duration of PG Date of retirement Service left after No. Course companypletion of companyrse Dr. V.K. Khullar 2008-11 31.08.2012 1 year 2 months Dr. Kamal Kishore 2008-11 30.6.2019 8 years Dr. G.S. Dhaliwal 2008-11 31.8.2020 9 years 2 months The three writ petitioners first respondent in each of the appeals companytended as follows Dr. Kamal Kishore and Dr. G.S.Dhaliwal were eligible for admission to the companyrse in terms of the prospectus numberification dated 17.3.2008 and that they were also eligible to get NOC in terms of the circular dated 13.5.1996 which required the candidates admitted to the companyrse to serve for five years after companypletion of the companyrse. The amendment circular dated 30.7.2007 which introduced the requirement of 10 years service after companypletion of the companyrse was inapplicable to them as the prospectus numberification dated 17.3.2008 stated that they should only obtain an NOC in terms of the circular dated 13.5.1996 issued by the Punjab Government, and did number refer to the amendment memo dated 30.7.2007. Dr. V. K. Khullar was ready to serve for five years after companypletion of the companyrse in 2011 and his retirement would number be a bar to his service as he companyld work on retirement on companytract basis. In the event of Dr. V. K. Khullar being found to be ineligible for being selected under the 60 quota, he should be companysidered as having been admitted under the 40 quota. They also submitted that the circular dated 30.7.2007 had been challenged other similarly situated candidates in CWP No.8340/2009 - Dr. Gobind Tandon and 37 other vs. State of Punjab and others wherein the Punjab Haryana High Court has made an interim order dated 28.5.2009 permitting the writ petitioners therein to join the companyrse by furnishing bonds for the remainder of their service instead of furnishing bond for 10 years service. They also submitted that they have virtually companypleted more than threefourth of the MD Courses and if any action is taken against them at this belated stage by cancelling the admissions, the society would lose the services of three specialized doctors on whose education, companysiderable money has been spent by the government. They therefore requested that they should be permitted to companyplete the decree and serve for the balance period of their service. The question for companysideration is whether the High Court companyld have disposed of the writ petitions by virtual number-speaking orders, without companysidering the various issues, only with a direction to verify the provisional NOCs within two weeks and permitting the writ petitioners to companytinue with their studies. We find that the orders of the High Court are unsatisfactory as they do number specify what should happen if on verification of the provisional NOCs, it was found that they are number valid. We also find that the direction to appellants to permit the three writ petitioners to companytinue their studies was unconditional and was number restricted to the period required for verification of the provisional NOCs. Normally, we would have set aside the said orders of the High Court and remanded the matters with a direction to the High Court to companysider the companytentions raised and pass appropriate orders. But having regard to the fact that the three writ petitioners first respondent in each of the three appeals have already companypleted 2 years and 3 months out of the 3 year MD companyrse, any remand would result in further delay, thereby adversely affecting their interests and also deny the benefit of their specialised service to the society. Therefore, we propose to dispose of the matters without remand. The prospectus numberification dated 17.3.2008 requires the in-service doctors to produce NOCs. from the Director, Health Family Welfare or the Director, Medical Education Research as the case may be before joining the companyrse, in accordance with the instructions companytained in the circular dated 13.5.1996 and any other instructions issued by the Punjab Government. What is significant is that the circular dated 30.7.2007 increasing the period of minimum service under the bond from 5 years to 10 years and bond amount from Rs.2 lakhs to Rs.10 lakhs for PG companyrses is number mentioned or made applicable. The words any other instruction issued by the Punjab Government in the companytext of the said clause in the Prospectus cannot be interpreted as referring to any instruction increasing the burden on the candidates to secure the No Objection Certificate. A candidate should be made known about the requirements to be fulfilled by him and cannot be exposed to unknown liabilities or limitations. If the intention was to make the amendment numberification dated 30.7.2007 applicable to the 2008 PG admissions, the Prospectus should have referred to that amendment circular dated 30.7.2007, while mentioning the circular dated 13.5.1996. Nothing prevented the Government from stating that the NOC should be subject to the companyditions mentioned in the circular dated 13.5.1996 as amended by circular dated 30.7.2007. It should be numbered that the amendment circular dated 30.7.2007 was issued after the 2007 admissions and was sought to be made applicable for the first time in respect of the 2008 admissions. Therefore, the candidates for 2008 admissions would number know about the said amendment circular dated 30.7.2007 unless it was mentioned in the Prospectus. The candidates would have bonafide proceeded on the basis that eligibility for the NOC was in terms of the government circular dated 13.5.1996.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 55A of 1987. From the Judgment and Order dated 8.10. 1985 of the Allahabad High Court in Civil Misc. Petn. No. 2278 of 1981. N. Kacker, R.N. Sharma, J.K Jain and N.N. Sharma for the Appellant. Gopal Singh and L.R. Singh for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. The question failing for companysideration in this appeal by special leave is whether the High Court has erred in law in quashing the order of eviction passed against the respondent by the Judge, Small Cause Court as companyfirmed by the Additional District Judge and remitting the suit to the trial companyrt for fresh companysideration in the event of the trial companyrt allowing an application by the appellant under Order I Rule 10 Civil Procedure Code for companyrecting the name of the plaintiff in the plaint. The background of events to this Appeal may briefly be stated. The appellant Bal Niketan Nursery School is a recognised institution under the U.P. Basic Education Act, 1972, and is run and managed by a Society, Smt. Chandramukhi Ram Saran Shiksha Samiti, registered under the Societies Registration Act. Dr. Om Prakash is the Manager of the appellant school and also the Secretary of the registered Society mentioned above. On 10.3.1977 the Society purchased a plot of the land adjoining the school together with four super structures Khaprails standing thereon in the name of the appellant school through its Manager Om Prakash Gupta. The super-structures were in the occupation of four tenants. The entire rental income derived from the tenants is being utilised for the purpose of running the school. Under the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 for short the Rent Act the provisions of the Act would number apply to a property owned by a recognised educational institution if the whole of the income from the property is utilised for the purposes of the institution. Section 2 1 b which provides for the exemption is in the following terms Nothing in this Act shall apply to any building belonging to or vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution. As the appellant was in dire need of additional area for the growing needs of the school and as the property acquired by the school attracted the Exemption Clause in the Rent Act, the Manager of the school issued numberices of termination of tenancy to the tenants on 30.5. 1977 under Section 106 of the Transfer of Property Act and demanded surrender of possession. As the tenants failed to surrender possession, the appellant filed separate suits against the four tenants for ejectment and payment of arrears of rent. The suits were filed in the name of the appellant school through its Manager Dr. Om Prakash. The Cause Title of the plaintiff in the plaint was given as under- BaI Niketan Nursery School, Near Ganj Gurhatti, Moradabad through Dr. Om Prakash, Manager of the School. All the four tenants including the respondent herein raised only two defences in the suit, namely, that the appellant school is number a recognised educational institution so as to be entitled to the benefit of Section 2 1 b of the Rent Act and secondly, that the numberice of termination of tenancy was number a valid numberice because it had number been issued by an institution having juristic status. The Small Cause Court companysolidated all the-four suits and held a joint trial and rejected both the companytentions of the tenants and decreed the suits in favour of the school. The tenants preferred revisions against the judgment to the District Judge and the learned Judge companyfirmed the judgment and decree of the Small Cause Court and dismissed all the revisions. Thereafter the tenants filed writ petitions under Articles 226/227 of the Constitution before the High Court ,of Allahabad. Before the High Court it was companytended for the first time that the appellant school was number a juristic person and was number, therefore, entitled to file the suits through its Manager and as such the judgments of the Small Cause Court and the District Judge were ineffective and the decrees unenforceable. The companynter argument of the school was that as a recognised institution under the U.P. Basic Education Act, 1972 it has juristic status and furthermore it is the registered owner of the suit property, having obtained the sale deed in its own name and over and above all these the suit had been instituted by Dr. Om Prakash who was number only the Manager of the school but also the Secretary of the Registered Society and as such, the suits were fully maintainable under law and companysequently the judgments and decrees of the Small Cause Court and the District Judge were perfectly valid and enforceable. Besides putting forth such companytentions, the appellant school, by way of abundant caution also filed a petition under Order 1 Rule 10 Civil Procedure Code for amending the plaint by companyrecting the name of the plaintiff into Smt. Chandramukhi Ram Saran Shiksha Samiti by Secretary Om Prakash in place of the name of the Bal Niketan Nursery School by Manager Dr. Om Prakash. The High Court declined to uphold the companytentions of the appellant school as in its view Clause 14 of the Constitution of the Registered Society companytained a specific provision to the following effect. All the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them and as such, the appellant school was number a juristic person and only the registered society.had the authority and companypetence to file the suits. The High Court, therefore, held that the suits filed by the appellant school were number maintainable and companysequently the judgments and decrees passed by the Small Cause Court and the District Judge were liable to the set aside and accordingly quashed them in three suits alone since the 4th suit SCC Case No. 259/1977 had been companypromised after the filing of the Writ Petition. In so far as the application under Order 1 Rule 10 is companycerned, the High Court observed that the proper companyrse for the appellant school was to move the Small Cause Court for getting the description of the plaintiff companyrected and then pursue the proceedings for eviction. The High Court also gave directions to the Small Cause Court as to how the suits were to be dealt with after amendment of the plaint in the following terms- It is made clear that in case the Judge Small Cause Court exercises the powers under Order 1 Rule 10, C.P.C. by companyrecting the description of the plaintiff, i.e. by getting the juristic person the Society substituted as plaintiff in the suit the defendant would be entitled to file additional written statement and the parties shall be afforded opportunity to lead fresh evidence in the case. Aggrieved by the judgment of the High Court the appellant school has preferred this appeal by special leave. Mr. Kacker, learned companynsel for the appellant advanced five companytentions set out below to impugn the judgment of the High Court. The companytentions are as follows- The appellant school being a recognised institution under the U.P. Basic Education Act, 1972 is a legal entity and is, therefore, entitled to file the suits in its own name. Besides, the suit property has been purchased in the name of the appellant school and as the owner of the property the appellant is by itself entitled under law to file suits for seeking ejectment of the tenants. Consequent upon the purchase of the land and super-structures and the vesting of possession in it, the appellant became the landlord of the tenants and the entire rental income is being used for running the school. Therefore, in its capacity as the landlord of the tenants the appellant school is entitled to file the suits for ejectment numberwithstanding clause 14 of the Constitution of the Registered Society. Even if it is viewed that the Registered Society is alone entitled to-file the suit Dr. Om Prakash who is companypetent to file the suit on behalf of the Registered Society has filed the suits on behalf of the school and as such the Society is fully represented by Dr. Om Prakash and thereby Clause 14 of the Constitution of the Soceity stands satisfied. Even if a hyper-technical view is to prevail requiring the suits to be filed only in the name of the Registered Society through its Secretary Manager, the High Court should have allowed the petition under Order 1 Rule 10 C.P.C. and disposed of the Writ Petitions on merits instead of quashing the companycurrent findings of the companyrts below and remitting the suits to the Small Cause Court for fresh disposal after dealing with the petition under Order 1 Rule 10 C.P.C. Learned companynsel for the respondent refuted the companytentions of Mr. Kacker and strenuously argued that the appellant is number a recognised school but even if it is treated as a recognised institution under the U.P. Basic Education Act and even if the sale deed pertaining to the land and superstructures has been obtained in the name of the school, it is only the Registered Society which can lawfully institute suits on behalf of the school or defend actions against it and that Clause 14 of the Constitution of the Society has overriding effect, and hence the suits filed by the appellant school are number maintainable. Having given our careful companysideration to the arguments of the learned companynsel and the view taken by the High Court we are of the opinion that the High Court was in error in sustaining the belated objection taken by the tenants regarding the companypetence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the Small Cause Court for fresh disposal after first companysidering whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake calls for rectification by allowing the petition filed under Order 1 Rule 10 P.C. The reasons which have prompted us to companye to this companyclusion are manifold and may be enunciated in the following paragraphs. Under the U.P. Basic Education Act, the appellant school has been granted recognition as a recognised institution and by reason of such recognition the school is companyferred certain rights and obliged to perform certain duties. One of the rights flowing from the recognition granted to the school is an exemption from the provisions of the Rent Act. Consequently, the appellant school has acquired rights by reason of the statutory recognition given to it under the P. Basic Education Act and to that extent the appellant school stands clothed with legal status. It is number, therefore, a number-entity in the eye of law. Viewed from that perspective the appellant is entitled to file the suits through its Manager to seek the eviction of the tenants occupying the superstructures. Of companyrse, the learned companynsel for the respondent tried to companytend that certain proceedings have been initiated for impugning the recognition granted to the appellant school under the U.P. Basic Education Act and as such the appellants status as a recognised institution cannot be taken for granted. We cannot companyntenance this argument because any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed. Furthermore, the respondent has number produced any material to show that the recognition granted to the school has been subsequently withdrawn. Secondly, apart from the legal status acquired by the school as a recognised institution, it is admittedly the registered owner of the suit property even though the purchase price may have been provided by the society. It is number in dispute that the sale deed pertaining to the land and the super-structures has been obtained in the name of the school. Even as a benami owner of the property, the appellant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do number companyflict with the rights of the society. As a companyollary to this proposition it follows that the appellant companystitutes the landlord of the tenants after the property was purchased in its name and rents from the tenants became to be companylected. Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellants right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed. Even if we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the tenants and are to judge the status of the appellant solely with reference to Clause 14 of the Constitution of the Society it may be numbericed that Dr. Om Prakash is number only the Manager of the School but also the Secretary of the Registered Society. The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause 14 of the Constitution of the Society he is companypetent to file suits on behalf of the Society. The school as well as the Registered Society, being institutions, they can file suits or defend-suits only through a companypetent office-bearer managing the affairs of the school or the Registered Society. Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has number ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have number been instituted by an incompetent person who is number empowered under the Constitution of the Society to file suits on behalf of the Society. There is, therefore, numbermerit in the belated objection raised by the tenants that the suits are number maintainable in view of Clause 14 of the Constitution of the Society. The suits, even if number instituted in the name of the Registered Society, are nevertheless companypetent actions because they have been filed by Dr. Om Prakash who is companypetent to file suits on behalf of the Society also for recovering possession of the leased property to the school. The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have number been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10-has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is number hampered. The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the companyrt may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the companyrt thinks just. The scope and effect of Order 1 Rule 10 has been companysidered in numerous cases and there is a plethora of decisions laying down the ratio that if the companyrt is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the companyrt should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice. The companyrts have gone so far as to hold that even if the suit had been instituted in the name of a person who had numbercompetence to file the suit, the companyrts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice. We may only refer to a few decisions in this behalf. In Hughes v. The Pump House Hotel Company Limited No. 2 , 1902 2 Kings Bench 485 a dispute was raised regarding the companypetence of the plaintiff to file a suit because doubts were cast as to whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge. Thereupon an application was made under Order XVI Rule 2 companyresponding to Order 1 Rule 10 CPC for substitution of another person as plaintiff. The application was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had numbercause of action would number take away the jurisdiction of the companyrt to order the substitution of another person as plaintiff. In Krishna Bai v. The Collector and Government Agent, Tanjore Others, ILR 30 Madras 419 when it was found that a suit for ejectment of a defendant had been brought by the Collector and Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the companyrt allowed an application for substitution of the companyrect plaintiff and it was further held that the fact that the Collector had numberright to institute the suit would number stand in the way of the companyrt ordering the substitution of the companyrect plaintiff. In Sitla Bux Singh v. Mahabir Prasad, AIR 1936 Oudh 275 it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to companytinue the suit. In Dinanath Kumar v. Nishi Kanta Kumar and Others, I.R. 1952 Calcutta 102 the companyrt allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings. In Laxmikumar Srinivas Das v. Krishnaram Baldev Bank, Lashkar and another, A.I.R. 1954 M.B. 156 it was held that the words where a suit has been instituted in the name of the wrong person as plaintiff must be companystrued to include those suits which the instituted by persons who had numberright to do so and that the fact that the person instituting the suit had numbercause of action would number take away the companyrts jurisdiction to order substitution of another as plaintiff. In Karri Somalu v. Thimmalapalli Venkataswamy and others, 1963 2 A.W.R. 138 it was held that the expression wrong person in Order 1 Rule 10 cannot be companyfined merely to a person wrongly described but would also extend to include a person whose name ought number to have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do number suffer. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, A.I.R. 1963 SC 786 it was held that in proceedings for a writ of certiorari it is number only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and that it is in the discretion of the companyrt to add or implead proper parties for companypletely settling all the questions that may be involved in the companytroversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party. In Murari Mohan Deo v. Secretary to Government of India, 1985 3 SCC 120 the dismissal of a petition under Article 226 of the Constitution by the Judicial Commissioner was challenged by the appellant therein. The Judicial Commissioner found that the appellant who was a forester in the employment of Tripura Government had been wrongly removed from service by an order of companypulsory retirement but nevertheless refused to grant relief to the appellant because he had failed to implead the Government of India which was a necessary party to the proceedings. This Court disapproved the dismissal of the writ petition on the technical ground and observed as follows- Respondent 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs. If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a Class IV low grade servant should number have been made to suffer. An oral request to companyrect the description of the first respondent would have satisfied the procedural requirement. By raising and accepting such a companytention, after a lapse of six years, the law is brought into ridicule. The companyrt companyld have companyveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be companypetent by any standard. The companytention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commissioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the companycerned officers. Therefore, number only the petition as drawn up was companypetent but numberbone of companytention companyld be taken about its incompetence. Having regard to this settled position of law the High Court ought number to have sustained the objection raised by the tenants regarding the companypetency of the appellant to file the suits and quashed the orders of eviction companycurrently passed by the Small Cause Court and the Appellate Judge and remitted the suits for fresh companysideration with directions to companysider the merits of the application under Order 1 Rule 10 CPC but should have itself allowed the petition and added the Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. We, therefore, allow the appeal and remit the matter to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10 CPC by the appellant and ordering Smt. Chandramukhi Ram Saran Shiksha Samiti through its Secretary Dr. Om Prakash to be also added as a plaintiff in the suits so as to make it clear that Dr. Om Prakash is representing number only the appellants school but also the Registered Society and dispose of the writ petitions on merits after the formal amendments have been carried out in the pleadings. The parties are directed to bear their respective companyts.

The respondent instituted Title Suit No.6 of 1974 for eviction of the appellant on ground of default in payment of rent. That suit was dismissed on 31.1.1978. The first appeal preferred by the respondent before the District Judge succeeded vide judgment and order dated 31.3.1979. The appellant filed second appeal in the High Court, being Second Appeal No. 404 of 1979. During the pendency of that appeal, landlord - respondent filed an application under Section 15 of the Bihar Building Control Act hereinafter the Act for deposit of arrears of rent accumulated during pendency of the appeal and future rent during the pendency of the appeal. An order came to be made by the High Court on 25.9.1979 to deposit the arrears of rent by 15.11.1979. The appellant, however, deposited the arrears of rent on 9.2.1980 and that amount was subsequently withdrawn by the respondent - landlord. While the second appeal was pending in the High Court, the respondent instituted Title Suit No. 100 of 1980 seeking eviction of the appellant on the ground that during the pendency of the appeal in the High Court arising out of the earlier suit, the appellant had number companyplied with the direction of the High Court to deposit the rent mad eon 25.9.1979, in the application under Section 15 of the Act within the prescribed time and was thus in default in payment to arrears of rent and, therefore, liable to be evicted. The appellant companytested the suit and in his written statement inter-alia raised the plea that the default in the deposit of rent pursuant to the orders passed by the High Court in the application under Section 15 of the Act within the prescribed period companyld number be a ground for his eviction. It was also averred that since the respondent had withdrawn the rent amount, we had waived her right to companyplain about the delayed deposit of rent. The trial companyrt decreed title suit No. 100 of 1980 on 29.3.1985. An appeal filed by the appellant before the District Judge was dismissed on 10.5.1990. His second appeal failed before the High Court on 6.2.1991. Hence this appeal by special leave. We have heard learned companynsel for the parties and gone through the records. The companysequence of number-compliance with a direction made under Section 15 of the Act is companytained in Section 15 1 of the Act. The companyrt companyld order the defence against ejectment to be struck off and to place the tenant in the same position as if he had number defended the claim to ejectment in the matter or cause in which the direction was made. For number-compliance of the direction in the second appeal, recourse companyld number be had to seeking ejectment under Section 11 of the Act. Delay in the deposit of trend is number companyered by Section 11 of the Act, particularly after the rent was withdrawn without demur by the landlord.

ORIGINAL JURISDICTION Petition No. 646 of 1954. Petition under Article 32 of the Constitution of India. R. Jagadisan, Naunit Lal and T. V. Balakrishnan, V. Balakrishnan, with the permission of the companyrt for the petitioners. K. Daphtary, Solicitor-Genral of India, G. N. Joshi, B. Ganapathy lyer and R. H. Dhebar, with him for the respondents. 1955. December 20. BHAGWATI J.-This petition under Article 32 of the Constitution also raises the question about the companystitutionality of section 5 1 of the Taxation on Income Investigation Commission Act, 1947 XXX of 1947 . 1250 The facts which led to the filing of this petition may be shortly stated. Sir M. Ct. Muthiah Chettiar who carried on a flourishing banking business in India and foreign companyntries died in or about 1929 leaving behind him two sons M. Ct. M. Chidambaram Chettiar since deceased and M. Ct. M. Muthiah Chettiar, petitioner 3, and his widow Devanai Achi. M. Ct. Chidambaram Chettiar companytinued the ancestral banking business and also started several companymercial enterprises. He died by an accident while traveling in a plane in the year 1954 leaving behind him his two sons, the petitioners 1 Devanai Achi had predeceased him. The petitioners 1 2 are the legal representatives of the deceased M. Ct. M. Chidambaram Chettiar and also the representatives of their grandmother Devanai Achi. The Central Government, in exercise of its powers under section 5 1 of Act XXX of 1947, referred to the Income-tax Investigation Commission R. C. Nos. 516, 517 and 518 relating to M. Ct. M. Chidambaram Chettiar, M. Ct. M. Muthiah Chettiar, petitioner 3, and Devanai Achi. The Commission, after holding an enquiry in all the three cases, recorded their findings and held that an aggregate sum of Rs. 10,07,322-4-3 represented the undisclosed income during the investigation period and directed distribution of this sum over the several years in the manner indicated by them in Schedule A to their report. This report was submitted by the Commission to the Government on the 26th August 1952. The Central Government companysidered the report and, purporting to act under section 8 2 of the Act directed by their order No. 74 26 I.T./52 dated the 16th September 1952 that appropriate action under the Indian Income-tax Act be taken against the assessees with a view to assess or re-assess the income which had escaped assessment for the years 1940-41 to 1948-49. In pursuance of the said directions of the Central Government the Income-tax Officer, City Circle 1, Madras, issued numberices under section 34 of the Indian Income-tax Act and made the reassessment for the 1251 years 1940-41, 1941-42 and 1943-44 to 1948-49 based upon the findings of the Commission which were treated as final and companyclusive. The assessment orders for the years 1940-41, 1941-42 and 1948-49 were served on the assessees on the 20th February 1954. Assessment orders for the years 1943-44 to 1947-48 were served on the 12th May 1954. There assessment order for the year 1942-43 was -Dot made though numberices under section 34 of the Indian Income-tax Act had been issued by the Income-tax Officer on the assessees on the 19th March 1954. It appears that these re-assessment proceedings for the year 1942-43 are yet pending and numberassessment order in respect of that year has yet been served on the petitioners. In regard to the assessment orders which were served on the 20th February 1954, the petitioners preferred on the 18th May 1954 applications to the Commissioner of Incometax, Madras, under section 8 5 of the Act for references to the High Court on questions of law arising out of those reassessment orders passed by the Income-tax Officer. Similar applications were preferred thereafter in respect of the reassessment orders which were served on the petitioners on the 12th May 1954. These applications are still pending. On the 6th December 1954, the petitioners filed the present petition companytending that the provisions of the Act XXX of 1947 were illegal, ultra vires and unconstitutional mainly on the ground that they were violative of the fundamental right guaranteed under article 14 of the Constitution. The grounds urged in support of this companytention were number felicitously expressed. The petitioners appear to have mixed up the companytentions which companyld be urged as a result of our judgments in Suraj Mall Mohta v. A. V. Visvanatha Sastri and Another 1 and Shree Meenakshi Mills Ltd. v. A. V. Visvanatha Sastri and Another 2 . They companytended in the first instance that after the amendment of section 34 of the Indian Income-tax Act by Act XXXIII of 1954, which inter 1 1955 1 S.C.R. 448. 158 2 1955 1 S.C.R. 787. 1252 alia, added sub-sections 1-A to 1-D to section 34, the provisions of section 5 1 of the Act became discriminatory, as on a reading of both the enactments, Act XXX of 1947 and the Income-tax Act as amended in 1954 showed that they applied to the same category of persons and there was numberhing in section 5 1 of the Act or any other provision of the said Act disclosing any valid or reasonable classification. The provisions of Act XXX of 1947 companyld number, therefore,be sustained on the ground of classification to avoid the mischief of article 14 of the Constitution. The petitioners obviously relied upon our decision in Shree Meenakshi Mills case, supra, in support of this companytention. The petitioners thereafter proceeded to set out their alternative companytention based upon our decision in Suraj Mall Mohtas case, supra, though it was number so stated in express terms. They companytended that Act XXX of 1947 enabled the Central Government to discriminate between one person and another inasmuch as they were authorised to pick and choose cases of persons who fell within the group of those who had substantially evaded taxation on income, that the act of the Government in referring some evaders to the Commission was wholly arbitrary and there was numberhing to eliminate the possibility of a favouritism or a discrimination against an individual by sending or number sending cases to the Commission as between two persons both of whom might be within the group of those who have evaded the payment of tax to a substantial extent. They further companytended that the procedure prescribed under the impugned Act was substantially more prejuducial and more drastic to the assessee than the procedure prescribed under the Indian Income-tax Act. There was numberreasonableness or justification that one person should have the advantage of the procedure prescribed by the Indian Income-tax Act while another person similarly situated should be deprived of it. They, therefore, companytended that section 5 1 of the Act was discriminatory and violative of article 14 of the Constitution and asked for the issue of a writ of 1253 certiorari or any other appropriate writ, direction or order quashing the report of the Income-tax Investigation Commission dated the 29th August 1952 enclosed as Annexure A to the petition and the assessment orders of the Income-tax Officer for the years 1940-41, 1941-42, and 1943-44 to 1948- 49 as being unconstitutional, null and void and also of a writ of prohibition calling upon the Commissioner of Incometax, Madras, respondent 1 and the Income-tax Officer, City Circle 1, Madras, respondent 2 or their subordinate officers to forbear from implementing the findings of the Investigation Commission with regard to the year 1942-43. This petition was heard along with Civil Appeals Nos. 21 and 22 of 1954, A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another and M. Venkitachalam Potti Another v. A. Thangal Kunju Musaliar 1 , which also raised inter alia the companynate question about the companystitutionality of section 5 1 of the Travancore Act XIV of 1124 which was in pari materia with section 5 1 of Act XXX of 1947. In regard to the question whether there is a rational basis of classification to be found in the enactment of section 5 1 of the Act, the preamble and the relevant provisions of Act XXX of 1947 are the same as were companysidered by us in companysidering this question in relation to the Travancore Act XIV of 1124, The words substantial extent also have been used in both the Acts and in the present case as in the cases of the Travancore petitioners companycerned in the Evasion Cases Nos. I and 2 of 1125 M.E. , Gauri Shanker, Secretary, Income-tax Investigation Commission made an affidavit dated the 21st September 1955 wherein he set out the events and circumstances under which Act XXX of 1947 came to be passed. In paragraph 4 of that affidavit he stated It was found that during the period of the last war large fortunes had been made by businessmen. Controls imposed by Government on prices and distribution, were often evaded and secret profits were made and kept outside the books and often kept invested in shares and real property acquired in the 1 1955 2 S.C.R. 1196. 1254 names of benamidars or in cash purchases of gold, silver and jewellery. The machinery of Income-tax administration was unable to companye with the large number of companyplex cases that had to be dealt with, during the war years and a few years after its termination. As there had been a large scale evasion of tax during this period, it became necessary in the public interests to investigate cases of evasion of incompanye-tax and bring under assessment huge profit that had escaped assessment. As a preliminary step in this direction, a demonetisation Ordinance was passed in January 1946 sterilising the High Denomination Notes in which secret profits earned during the war years had been partly kept and calling for a statement regarding the source of such profits. This was followed by the Income-tax Investigation Commission Bill. In view of the prolonged and companyplicated enquiries that bad to be made to unearth these secret war profits and bring them under assessment a special Commission was companystituted to enquire into the profits made since 1939 but which had escaped assessment. I say that what is intended to investigate is evasion of payment of taxation which companyld reasonably be called Substantial and therefore the classification is real classification. The statute merely leaves the selective application of the law to be made by the executive authorities in accordance with the standards indicated in the Act itself. This affidavit furnished the background and the surrounding circumstances obtaining at the time when Act XXX of 1947 was enacted and if this background is taken into account it would be obvious that the substantial evaders of payment of income-tax whose cases were referred by the Central Government to the Commission formed a class by themselves and there was a rational basis of classification in the enactment of section 5 1 of the Act. The argument that the terms of section 5 1 enabled the Central Government to pick and choose the cases of particular individuals falling within that category leaving the cases of other persons falling within the same category to be dealt with in accord- 1255 ance with the provisions of section 34 1 of the Indian Income-tax Act as it stood prior to the amendment of 1948 has been already dealt with in our judgment in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another, supra, while dealing with the companyresponding provisions of section 5 1 of the Travancore Act XIV of 1124 and section 47 of the Travancore Act XXIII of 1121 and we have pointed out that so far as the Indian Income-tax Act as it was in existence on the 18th April 1947 which was the date on which Act XXX of 1947 received the assent of the Governor-General stood unamended by Act XLVIII of 1948, the cases of persons who fell within the category of substantial evaders of incometax within the meaning of section 5 1 of the Act companyld number have been dealt with under the provisions of section 34 1 of the Indian Income-tax Act and, therefore, there was numberdiscrimination and numberviolation of the fundamental right guaranteed under article 14 of the Constitution. The other argument that the selection of the persons whose cases were to be referred by the Central Government for investigation to the Commission was left to the unguided and uncontrolled discretion of the executive or the administrative officials also has been dealt with in that judgment and we need number repeat our reasons for rejecting the same. If the provisions of section 34 1 of the Indian Incometax Act as it stood unamended by Act XLVIII of 1948 which companyresponded with the provisions of section 47 of the Travancore Act XXIII of 1121 had been the only provisions to be companysidered we would have reached the same companyclusion as we did in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another, supra. The position, however, in the present case is materially affected by reason of the two amendments which were made in section 34 of the Indian Income-tax Act, one in 1948 by the enactment of Act XLVIII of 1948 and the other in 1954 by the enactment of Act XXXIII of 1954. Section 34 as amended by Act XLVIII of 1948 read as under 1256 Section 34 1 If- a the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed or assessed at too low a, rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been companyputed, or b numberwithstanding that there has been numberomission or failure as mentioned in clause a on the part of the assessee, the Income-tax Officer has in companysequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been companyputed, he may in cases falling under clause a at any time within eight years and in cases falling under clause b at any time within four years of the end of that year, serve on the assessee, or, if the assessee is a companypany, on the principal officer thereof, a numberice companytaining all or any of the requirements which may be included in a numberice under subsection 2 of section 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance and the provisions of this Act shall, so far as may be, apply accordingly as if the numberice were a numberice issued under that sub-section Act XXXIII of 1954 introduced into section 34 sub-sections 1-A to 1-D . Section 34 1-A which is material for our purposes provided Section 34 1-A If, in the case of any assessee, the Income-tax Officer has reason to believethat income, profits or gains chargeable to income-tax have escaped assessment for any year in 1257 respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946 and, that the income, profits or gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more he may, numberwithstanding that the period of eight years or, as the case may be, four years specified in sub-section 1 has expired in respect thereof, serve on the assessee, or, if the assessee is a companypany, on the principal officer thereof, a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section 2 of section 22, and may proceed to assess or re-assess the income, profits or gains of the assessee for all or any of the years referred to in clause i , and thereupon the provisions of this Act excepting those companytained in clauses and iii of the proviso to sub-section 1 and in subsections 2 and 3 of this section shall, so far as may be, apply accordingly Provided thatthe Income-tax Officer shall number issue a numberice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such numberice Provided further that numbersuch numberice shall be issued after the 31st day of March, 1956. Amended section 34 1 of the Indian Income-tax Act was substantially different from the old section 34 1 which was in operation up to the 8th September 1948. The words if in companysequence -of definite information which has companye into his possession the Income-tax Officer discovers that income, profits or gains chargeable to income-tax have escaped assessment in any year which appear in the old section were substituted by the words If the Incometax Officer has reason to believe that by reason of the omission or failure on the part of the assessee income, profits or gains chargeable to income-tax have escaped assessment . The 1258 requisites of i definite information ii which had companye into possession of the Income-tax Officer and in companysequence of which iii he discovers that income, profits or gains chargeable to income-tax had escaped assessment, were numberlonger necessary and the only thing which was required to enable the Incometax Officer to take proceedings under section 34 1 as amended was that he should have reason to believe that by reason of the omission or failure on the part of the assessee income, profits or gains chargeable to income-tax had escaped assessment for a particular year. Whereas before this amended section 34 1 came to be substituted for the old section 34 1 there was numbercomparison between the provisions of section 5 1 of Act XXX of 1947 and section 34 1 of the Indian Income-tax Act as it then stood, the provisions of section 34 1 as amended after the 8th September 1948 companyld stand companyparison with the provisions of section 5 1 of Act XXX of 1947 and the cases which were companyered by section 5 1 of Act XXX of 1947 companyld be dealt with under the procedure laid down in section 34 1 of the Indian Income-tax Act. After the 8th September 1948, therefore, even in the case of substantial evaders of income-tax who were a distinct class by themselves intended to be treated by the drastic and summary procedure laid down by Act XXX of 1947, some cases that were already referred by the Central Government for investigation by the Commission companyld be dealt with under that Act and other cases, though falling within the same class or category, companyld be dealt with under the procedure prescribed in the amended section 34 1 of the Indian Income tax Act. The persons who were thus dealt with under section 34 1 of the Indian Incometax Act had available to them the whole procedure laid down in that Act including the right to inspect documents and the right to question the findings of fact arrived at by the Income-tax Officer by the procedure of appeal and revision and ultimate scrutiny by the Income-tax Appellate Tribunal which was denied to those persons whose cases had been referred by the Central Government for investigation by the 1259 Commission under section 5 1 of Act XXX of 1947. The juxtaposition of dates is also very instructive. It may be numbered that in Act XXX of 1947 as it was originally enacted, the period up to which the Central Government companyld make the references to the Commission for investigation was laid down in section 5 1 of the Act to be 30th June 1948. This period was extended to the 1st September 1948 by the Taxation on Income Investigation Commission Second Amendment Act, 1948 XLIX of 1948 . Act XLIX of 1948 was passed by the Central Legislature and received the assent of the Governor-General on the 8th September 1948, the same day on which Act XLVIII of 1948 which amended section 34 1 of the Indian Income-tax Act also received the assent of the Governor-General. Both these Acts, viz., Act XLVIII of 1948 and Act XLIX of 1948 were passed simultaneously and obviously with a view to bring the provisions of section 5 1 of Act XXX of 1947 and section 34 1 of the Indian Income-tax Act in tune with each other. It appears to have been realized that the substantial evaders of income-tax in respect of whom the Central Government had prima facie reasons for believing that they had to a substantial extent evaded payment of taxation on income companyld number have their cases referred for investigation by the Commission after the 30th June 1948, that having been the time limit originally prescribed in section 5 1 of the Act. It also appears to have been felt that the period companyld number possibly be extended beyond the 1st September 1948 with the result that apart from the cases of substantial evaders of income-tax which were referred by the Central Government for investigation to the Commission up to the 1st September 1948 there would be a large number of such cases which though they companyld number be referred for investigation to the Commission would have to be dealt with under the ordinary provisions for taxation of income that had escaped assessment available in section 34 and the companynate sections of the Indian Incometax Act. As section 34 1 then stood, the requisites of 1260 definite information companying into the possession of the Income-tax Officer in companysequence of which be discovered that income, profits or gains chargeable to income-tax had escaped assessment would certainly number have availed the Government in tracking down these substantial evaders of income-tax and it appears, therefore, to have been thought necessary that section 34 1 of the Indian Income-tax Act should be amended so as to enable the Income-tax Officer to take proceedings thereunder if he had reason to believe that by reason of omission or failure on the part of the assessee income, profits or gains chargeable to income-tax had escaped assessment for the relevant period. An amendment of section 34 1 in this manner would enable Government to pass on the requisite information which they had obtained in regard to the substantial evaders of incometax to the Income-tax Officers companycerned and ask the Incometax Officers to take proceedings against those evaders of income-tax under the amended section 34 1 of the Indian Income-tax Act. That appears to have been the real object of the amendment of section 34 1 of the Indian Income-tax Act with effect from the 8th September 1948. The Commission would proceed with the references which were made to them up to the 1st September 1948 and the Income-tax Officers companycerned would take the requisite proceedings under section 34 1 of the Indian Income-tax Act as amended after the 8th September 1948 against all persons whose income, profits or gains had escaped assessment including substantial evaders of income-tax whose cases would certainly have been referred by the Central Government for investigation to the Commission if it had been possible for them to do so before the first September 1948. After the 8th September 1948, there were two procedures simultaneously in operation, the one under Act XXX of 1947 and the other under the Indian Incometax Act with reference to persons who fell within the same class or category, viz., that of the substantial evaders of income-tax. After the 8th September 1948, therefore, some persons who fell within the class of substantial evaders of 1261 income-tax were dealt with under the drastic and summary procedure prescribed under Act XXX of 1947, while other persons who fell within the same class of substantial evaders of income-tax companyld be dealt with under the procedure prescribed in the Indian Income-tax Act after service of numberice upon them under the amended section 34 1 of the Act. Different persons, though falling under the same class or category of substantial evaders of income-tax, would, therefore, be subject to different procedures, one a summary and drastic procedure and the other a numbermal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947. The legislative companypetence being there, these provisions, though discriminatory, companyld number have been challenged before the advent of the Constitution. When, however, the Constitution came into force on the 26th January 1950, the citizens obtained the fundamental rights enshrined in Part III of the Constitution including the right to equality of laws and equal protection of laws enacted in article 14 thereof, and whatever may have been the position before the 26th January 1950, it was open to the persons alleged to belong to the class of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure prescribed in Act XXX of 1947 and others were subjected to the numbermal procedure prescribed in section 34 and the companynate sections of the Indian Income-tax Act, the procedure prescribed in Act XXX of 1947 being obviously discriminatory and, therefore, violative of the fundamental right guaranteed under article 14 of the Constitution. It would be numberanswer to suggest that those substantial evaders whose cases were referred by the Central Government for investigation by the Commission before the 1st September 1948 formed a class by themselves leaving others though belonging to the same class or category of substantial evaders of 1262 income-tax to be dealt with by the ordinary procedure prescribed in the Indian Income-tax Act without infringing the fundamental right guaranteed under article 14 of the Constitution. A similar argument had been, advanced before us by the learned Attorney-General appearing for the Commission in Shree Meenakshi Mills case, supra. The ground which he had urged was that the class of persons dealt with under section 5 1 of Act XXX of 1947 was number only the class of substantial tax dodgers but it was a class of persons whose cases the Central Government, by 1st September, 1948, had referred to the Commission and that class had thus become determined finally on that date, and that class of persons companyld be dealt with by the Investigation Commission under the drastic procedure of Act XXX of 1947 while section 34 of the Indian Income-tax Act as amended empowered the Income-tax Officer to deal with cases other than those whose cases had been referred under section 5 1 to the Investigation Commission Mahajan, C. J. who delivered the judgment of the Court dealt with this argument at page 795 1 as under As regards the first companytention canvassed by the learned Attorney-General it seems to us that it cannot stand scrutiny. , The class of persons alleged to have been dealt with by section 5 1 of the impugned Act was companyprised of those unsocial elements in society who during recent years prior to the passing of the Act had made substantial profits and bad evaded payment of tax on those profits and whose cases were referred to the Investigation Commission before 1st September, 1948. Assuming that evasion of tax to a substantial amount companyld form a basis of classification at all for imposing a drastic procedure on that class, the inclusion of only such of them whose cases had been referred before 1st September, 1948, into a class for being dealt with by the drastic procedure, leaving other tax evaders to be dealt with under the ordinary law will be a clear discrimination for the reference of the case within a particular time 1 1955 1 S.C.R. 787, 795. 1263 has numberspecial or rational nexus with the necessity for drastic procedure These observations were made to repel the particular argument of the learned Attorney-General but they did number lay down that in fact section 5 1 was companyfined to such a limited class. We are further supported in this view by the fact that by the later amendment of section 34 of the Indian Income-tax Act effected by Act XXXIII of 1954, the time limit for the issue of numberice under section 34 1-A of the Indian Incometax Act has been fixed as the 31st day of March 1956. It is, therefore, clear that the period originally fixed for the reference of the cases of substantial evaders of incometax for investigation by the Commission, viz. 30th June, 1948 or the extended period, viz., I St September, 1948 provided in section 5 1 of Act XXX of 1947 or the period fixed by the new section 34 1-A of the Indian Income-tax Act, viz., 31st day of March 1956 was number a necessary attribute of the class of substantial evaders of income-tax but was merely an accident and a measure of administrative companyvenience and was number an element in the formation of the particular class of substantial evaders of income-tax. It follows, therefore, that after the inauguration of the Constitution on the 26th January, 1950, the persons whose cases were referred for investigation by Central Government to the Commission up to the 1st September, 1948 companyld, to use the words of Mabaian C. J. in Shree Meenakshi Mills case, supra, at page 794ask why are we number being dealt with by the discriminatory and drastic procedure of Act XXX of 1947 when those similarly situated as ourselves can be dealt with by the Income-tax Officer under the amended provisions of section 34 of the Act? Even if we once bore a distinctive label that distinction numberlonger subsists and the label number borne by us is the same as is borne by persons who can be dealt with under section 34 of the Act as amended in other words, there is numberhing uncommon either in properties or in characteristics between us and those evaders of 1264 income-tax who are to be discovered by the Incometax Officer under the provisions of amended section 34. We may also add, adopting the same phraseology, that in our judgment, numbersatisfactory answer can be returned to this query because the field on which the amended section 34 1 operated from and after the 26th January 1950 included the strip of territory which was also occupied by section 5 1 of Act XXX of 1947 and two substantially different laws of procedure, one being more prejudicial to the assessee than the other, companyld number be allowed to operate on the same field in view of the guarantee of article 14 of the Constitution. The result, therefore, is that barring the cases of persons which were already companycluded by reports made by the Commission and the directions given by the-Central Government under section 8 2 of Act XXX of 1947 culminating in the assessment or reassessment of the escaped income, those cases which were pending on the 26th January 1950 for investigation before the Commission as also the assessment or reassessment proceedings which were pending on the 26th January 1950 before the Income-tax Officers companycerned in pursuance of the directions given by the Central Government under section 8 2 of the Act would be hit by article 14 of the Constitution and would be invalidated. The R. C. Cases 516, 517 and 518 relating to M. Ct. M. Chidambaram Chettiar, M. Ct. Muthiah Chettiar and Devanai Achi were pending before the Commission on the 26th January 1950, the report therein number having been made by the Commission till the 26th August 1952 and the Commission had, after the 26th January 1950, numberjurisdiction to companyplete the investigation and make their report, the whole procedure being violative of the fundamental right guaranteed to the petitioners under article 14 of the Constitution. This position was number in terms argued before us by the learned companynsel for the petitioners. It was urged in the first instance that the case was governed by our decision in Shree, Meenakshi Mills case, supra, on 1265 the basis that by reason of the applications to the Commissioner of Income-tax, Madras, made by the petitioners under section 8 5 of the Act for reference to the High Court on questions of law arising out of the Income-tax Officers re-assessment orders above referred to, the proceedings under Act XXX of 1947 had number become final and the petitioners were, therefore, entitled to relief on the ratio of our judgment in that case. Reliance was placed in support of this position on the provisions of section 8 4 of the Act In all assessment or re-assessment proceedings taken in pursuance of a direction under sub-section 2 , the findings recorded by the Commission on the case or on the points referred to it shall, subject to the provisions of subsections 5 and 6 , be final but numberproceedings taken in pursuance of such direction shall be a bar to the initiation of proceedings under section 34 of the Indian Income-tax Act,1922 XI of 1922 . Sub-section 5 has reference to, the application made by the assessee to the Commissioner of Income-tax to refer to the High Court any question of law arising out of the assessment or re-assessment orders and sub-section 6 has reference to the power of the Commission either of their own motion or on the application of the person companycerned or of the Central Government to companyrect clerical or arithmetical mistakes in their report or errors therein arising from any accidental slip or omission These provisions companytained in sub-sections 5 and 6 , however, would number make the findings recorded by the Commission any the less final. These findings were invested with finality subject to this that if the High Court, on reference under subsection 5 , gave any opinion which would require a revision of those findings or if any clerical or arithmetical mistakes were found or errors were detected arising from accidental slip or omission within the meaning of subsection 6 which also required some alterations in the findings, these findings would be divested of their finality and would have to be revised accordingly. The assessment or re-assessment orders made by the Income- 1266 tax Officers based upon those findings would also be binding on the assessees subject only to the result of the reference, if any, made to the High Court on questions of law arising out of such orders. If this was the true position, it companyld number be urged that by reason of the pendency of the applications for reference to the High Court the proceedings under Act XXX of 1947 had number been companycluded against the petitioners and it companyld number also be urged that when Act XXXIII of 1954 was enacted introducing section 34 1-A in the Income-tax Act with effect from the 19th July 1954, the R.C. Cases 516 to 518 were pending and the whole proceedings under Act XXX of 1947 against the petitioners were invalidated. As a matter of fact the -report had been made by the Commission against the petitioners as early as the 26th August 1952, the Central Government had given the directions under section 8 2 for re-assessment of the petitioners on the 16th September 1952 and the re-assessment orders for all the years except the year 1942-43 had been made by the Income-tax Officer against them by the 12th May 1954 which was long before the Act XXXIII of 1954 came into operation. All these reassessments had thus become binding on the petitioners and were number affected by the mere pendency of the applications for reference to the High Court made by them to the Commissioner of Incometax, Madras, under section 8 5 of the Act. There is also a further point to be companysidered in this companynection and it is that whatever discriminatory procedure the petitioners were subjected to by reason of the reference of their cases by the Central Government to the Commission under section 5 1 of the Act had been companypleted long before the Act XXXIII of 1954 came into operation and the only further procedure which they would be subjected under the provisions of Act XXX of 1947 would be that of a reference to the High Court on questions of law arising out of the orders of re-assessment if these applications were granted either by the Commissioner of Income-tax, Madras, or by the High Court on further application. In the event of such reference being 1267 made, the petitioners had the additional advantage of having their references heard by the High Court in a Bench companystituted of number less than three Judges as companytrasted with the numbermal procedure obtaining under sections 66 and 66-A of the Indian Income-tax Act under which the references companyld be beard a Division Bench of the High Court. Whatever was, therefore, the procedure to which the petitioners would be subjected under Act XXX of 1947, after the companying into operation of Act XXXIII of 1954 it was, instead of being prejudicial to them, really advantageous to them, and following our decisions in the cases of Syed Qasim Razvi v. The State of Hyderabad and Others 1 and Habeeh Mohamed v. The State of Hyderabad 2 , we are of the opinion that the further proceedings, if any, which companyld be taken under the provisions of Act XXX of 1947 would number be at all discriminatory and violative of the fundamental right guaranteed under article 14 of the Constitution. The only relief which the petitioners would have been entitled to in that event would have been one in regard to the re-assessment proceedings for the year 1942-43 which were pending before the Incometax Officer by virtue of the numberice under section 34 issued by him to the petitioners on the 19th March 1954. Reliance was placed upon a decision of the Allahabad High Court reported in Gangadhar Baijnath and others v. Income-tax Investigation Commission, etc. 3 in support of this position. The learned Solicitor-General did number companytest this position but undertook on behalf of the Income-tax authorities that they will number proceed against the petitioners for the re-assessment for the year 1942-43 in pursuance of the numberice under section 34 served upon them in that behalf. This would have been the only relief to which the petitioners would have become entitled on the main companytention urged by them in their petition. The petitioners are, however, entitled to succeed on the alternative companytentions which were raised by them as 1 1953 S.C.R. 589. 2 1953 S.C.R. 661. A.I.R. 1955 All. 515. 1268 the result of the companyclusion which we have reached above in regard to the proceedings pending before the Commission having become discriminatory after the 26th January 1950 by reason of section 5 1 of the Act having become unconstitutional after the inauguration of the Constitution,on that date. In the result, the petitioners will be entitled to the issue of a writ of certiorari quashing the report of the Incometax Investigation Commission dated the 29th August 1952 and the assessment orders of the Incometax Officer for the years 1940-41, 1941-42 and 1943-44 to 1948-49 as being unconstitutional, null and void, and also to the issue of a writ of prohibition against the respondents from implementing the findings of the Investigation Commission referred to above with regard to the ear 1942-43 and we do order that such writs do issue against the respondents accordingly. The respondents will pay the petitioners companyts of this petition. JAGANNADHADAS J.-This petition raises the question whether section 5 1 of the Taxation on Income Investigation Commission Act, 1947 Act XXX of 1947 hereinafter referred to as the Investigation Commission Act is unconstitutional as offending article 14 of the Constitution and has therefore become void on the companying into force of the Constitution on the 26th January, 1950. This question was specifically left open in the two previous decisions of this Court, viz. in Suraj Mall Mohta Co. v. A. Y. Visvanatha Sastri 1 and Shree Meenakshi Mills Ltd. v. A. V. Visvanatha Sastri 2 . Almost the identical question arose in the Travancore Appeals 3 in which judgment has just number been delivered. The provision with which we were companycerned in those appeals is section 5 1 of Travancore Act XIV of 1924 which is almost in identical terms as section 5 1 of the Investigation Commission Act. We have held that this section of the Travancore Act did number, on the companying 1 1955 1 S.C.R. 448. 2 1955 1 S.C.R. 787. A. Thangal Kunju Musaliar Y. Authorised Official, I. T. 1955 2 S.C.R. 1196. 1269 into operation of the Constitution, violate article 14 thereof and that it accordingly companytinued to be valid. This result was based on the following companyclusions. The expression a person who has to a substantial extent evaded payment of taxation on income has to be interpreted having regard to the background or the circumstances that preceded at the time the section came to be enacted and which were disclosed in the affidavit filed in this Court by the Secretary of the Investigation Commission and so interpreted the word substantial indicates with reasonable certainty the class of persons intended to be subjected to the drastic procedure of the Act. The selective application of the law to persons in this class cannot be companysidered invalid since the selection is guided by the very objective set out in section 5 1 itself The fact that some persons may escape the application of the law is number necessarily destructive of the efficacy of the provision. It was also held, on a companyparison with section 47 of the Travancore Act XXIII of 1121, companyresponding to -section 34 of the Indian Income-tax Act, 1922 XI of 1922 as it stood prior to its amendment in 1948, that the persons who fall under the class of substantial evaders of income-tax within the meaning of section 5 1 of the Investigation Commission Act were number intended to be and companyld number have been dealt with under the provisions of section 47 of the Travancore Act XXIII of 1121 and that therefore there would be numberdiscriminatory application of two parallel statutory provisions. In the present case, however, the majority of the Court has taken the -view that section 5 1 of the Investigation Commission Act has become unconstitutional by the date of the Constitution in companyparison with section 34 of the Income-tax Act as amended in 1948. It was pointed out that section 47 of the Travancore Act XXIII of 1121 which was the same as section 34 of the Income-tax Act as it stood from 1939 to 1948 did number undergo any amendment by the date of the Constitution but companytinued as be- 1270 fore and it is said that this makes a difference. I feel companystrained, however, with the utmost respect, to hold, on a careful companysideration that there is numberroom for making any such distinction which is relevant for the purposes if this question. Undoubtedly it is true that section 34 of the Income-tax Act as it stood prior to 1948 is more restrictive in its operation than the same section as amended in 1948. But I am unable to see how the class falling under section 5 11 of the Investigation Commission Act is still number different from that which falls within amended section 34 of the Income-tax Act. Under section 5 1 of the Investigation Commission Act the requirement is that the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income. This is quite different from the criterion applicable under the amended section 34 of the Income-tax Act. In the first place, section 34 of the Income-tax Act relates to cases of evasion however small, while section 5 1 of the Investigation Commission Act relates only to large-scale evaders companyprised within the term substantial evasion. Secondly, the belief of the Government as to the existence of evasion need number satisfy any rigorous standard because it need number be based on any material directly companynected with the suspected evasion. It is enough if it is a prima facie reason to believe which having regard to the scheme of the Act would companyer cases in which tell-tale appearances may call for probing and effective investigation. This may well be numbermore than well-grounded reason to suspect. This is quite different from the standard of reason to believe required of the Income-tax Officer under section 34 of the Income-tax Act. Prima facie reason to believe and reason to believe are as different from each other as prima facie proof and proof. Therefore reason to believe is something definitely higher than reason to suspect. Indeed it is difficult to companypare the standards required under the two sections. Though numberdoubt the power exercisable by the Central Government under,, section 5 1 of the 1271 Investigation Commission Act and that exercisable by the Income-tax Officer under section 34 of the Income-tax Act have this in companymon that both have reference to reason to believe, the standard of belief and the basis of belief is expressed in such different terminology that it is number possible to companypare the two and equate the two as being the same. Nor indeed can it be posited that every case of the class companyprised in section 5 1 of the Investigation Commission Act must necessarily fall within section 34 of the Income-tax Act. Apart, however, from any question as to the companyparison between the two sections and as to the standards and basis of the belief required, once it is accepted as has been done in the Travancore Appeals 1 that substantial evasion is a definite legal standard determinative of a distinct class, it is clear that the class companyprised thereunder is number identical with the class companyprised under section 34 of the, Income-tax Act. In the alternative, it is a select group of a wider class. If the smaller grouping is on a rational basis relevant to the policy of the Act, it would form a distinct class by itself for purposes of article 14. It is necessary at this stage to bear in mind the entire scope of the Investigation Commission Act in order to determine what the class is which is companytemplated and companyered by it. Five main features may be numbericed of the scheme of the Investigation Commission Act. It relates only to those in respect of whom the Government have .prima facie reason to believe that there has been substantial evasion of tax. The belief does number result straightaway in proceedings for reassessment unlike under section 34 of the Income-tax Act but the question of reassessment i.e., reopening of the assessment depends on investigation into the companyrectness of that belief. The first step in the scheme is section 5 2 which companytemplates that the investigation may result in substantial A. Thangal Kunju Musaliar v. Authorised official I.T., 1955 2 S.C.R. 1196. 1272 evasion number being revealed. If so the further proceedings would be dropped on a report by the Commission to that effect. Hence numberreassessment starts in such a case. An effective procedure for investigation is provided to bring out all the necessary and relevant facts and material to substantiate the evasion and quantum thereof Proceedings for reassessment are taken only on the emergence of such material and on a report to that effect and that too on a further direction by the Government as to the exact nature of the proceedings to be taken and as to the exact period to be companyered falling within the limits of 31st December, 1938 and 1st September, 1948. See sections 8 2 and 5 3 of the Investigation Commission Act . A reference companyld be made by the Government to the Commission only up to a specified date line statutorily determined. If all these facts which are essential part of the scheme under the Investigation Commission Act are borne in mind it becomes apparent that the class companytemplated under section 5 1 of the Investigation Commission Act for reassessment is totally different from that which companyld be got at either under section 34 of the Income-tax Act as it stood between 1939 and 1948 or as it stands since 1948. One has only to companypare the provisions in the Income-tax Act relating to the means by which the numbermal income-tax authorities can get information or obtain material which might lead to a reopening of the assessment under section 34 of the Incometax Act to appreciate that the class companytemplated under section 5 1 of the Investigation Commission Act cannot be the same. The only provisions in the income-tax law for the purpose are sections 37, 38 and 39 of the Incometax Act. The primary scheme of the Income-tax Act is that the basic materials for the assessment are the returns and the accounts or other evidence to be furnished by the assessee himself sections 22 and 23 of the Income-tax Act or the checking material that may be available from the returns and the accounts 1273 of other assessees who have transactions with this assessee. It may also companysist of information received from other public authorities, etc., as well as the examination of persons appearing to have interconnected transactions. The Income-tax Officer has number the power to probe into suspicious features or obtain and seize material in verification or support thereof. All that numbermally he can do, where there is room for grave suspicion is to reject the accounts and make his assessment on the basis of best judgment , see section 23 4 of the Income-tax Act which cannot be sustained if it is a wild guess based on mere suspicion. Now, the whole scheme of the Investigation Commission Act is obviously inspired by the realisation that the numbermal machinery available to the Income-tax Officer for the reassessment of large scale suppressed income is number adequate. All the same, the Legislature realising that drastic investigation into the affairs of assessees on seemingly well grounded suspicions might result in serious encroachment of personal liberties, has number chosen to vest the Income-tax Officer with any such powers of investigation and has companyfined this drastic procedure to evasion of income during the period companymencing 1st January, 1939 to the 1st September, 1948 vide sections 8 2 and 5 3 of the Investigation Commission Act and limited the same to cases of substantial evasion. In companysidering, therefore, what is the ambit of the class companytemplated by section 5 1 of the Investigation Commission Act, it is necessary to remember these features of the scheme. It would follow that the class companyprised in section 5 1 is the class of substantial evaders -whose evasion appeared to the Government to call for a high-powered machinery for effective investigation, number available to an ordinary Income-tax Officer functioning under section 34 of the Income-tax Act. So understood it is quite clear, to my mind, that section 5 1 of the Investigation Commission Act relates to a class totally different from what can be brought in under -section 34 of the Income-tax Act as it, either stood before, or stands after, 1948. That this class was 1274 really companytemplated to be distinct is also indicated by the following provision of section 8 4 of the Investigation Commission Act. No proceedings taken in pursuance of such direction direction made under section 8 2 for reassessment shall be a bar to the initiation of proceedings under section 34 of the Indian Income-tax Act. This seems to indicate the possibility of companycurrent assessment proceedings as against any particular assessee under section 34 of the Income-tax Act as also under section 8 2 of the Investigation Commission Act. The idea appears to be that section 34 proceedings may go on in respect of such income of the assessee the escaping of which companyes to the knowledge of the officer by the numbermal procedure, and that the reassessment under the Investigation Commission Act is expected to be in respect of such evaded income which is to be discovered only as a result of regular and effective investigation. It has been suggested in the companyrse of arguments that numberobjection companyld be taken to Government taking only sufficient powers for investigation in appropriate cases, without any question arising as to discrimination or classification but that this cannot justify discriminatory procedure as regards actual reassessment. That raises a different aspect of the matter which will be presently dealt with. Assuming however that substantial evaders companytemplated under section 5 1 of the Investigation Commission Act fall also within the larger class of evaders who fall within the class companytemplated by section 34 of the Income-tax Act as it stands, what follows? The selective group under section 5 1 of the Investigation Commission Act is determined with reference to the criteria 1 that they are substantial evaders of income-tax, and 2 that they are assessees within the period 1939 to 1948 which is well-known to be the period of war profits and black-marketing and in respect of whom the Government get information before 1st September, 1948, justifying investigation. This is by itself a welldefined class and the 1275 classification has a reasonable relation to the object to be achieved, viz., the catching up of the escaped black-market war profits, for assessment. It is to be assumed that the Government would have made their references to the Investigation Commission of all the cases of persons about whom they have the requisite belief or information before 1st September, 1948. If there are any war profiteers of that period against whom there was numberinformation by then and against whom information becomes available later, it will be probably found that the information so received is number such as to enable the ordinary Income-tax Officer to rope him in. It may turn out that he has evaded once for all. But even if, in some cases, the Incometax Officer companyld by the ordinary process get the escaped income of such assessees for reassessment, that by itself is numberground for thinking that a classification of substantial war profiteers who have evaded income-tax and against whom there was information up to a specified date is number in itself a valid classification. It is well-recognised that a classification otherwise reasonable is number invalid by reason of the classification number being companyprehensive. In Joseph Patsone v. Commonwealth of Pennsylvania 1 the Supreme Court of the United States of America laid down thata state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be companysidered to define those from whom the evil mainly is to be feared, it properly may be picked out. A. lack of abstract symmetry does number matter. The question is a practical one dependent upon experience It is number enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. Again in West Coast Hotel Co. v. Ernest Parrish 2 the same Court stated- This Court has frequently held that the legisla- 1 282 U.S. 138, 144 58 L. Ed. 539, 543. 2 300 U.S. 379, 400 81 L.Ed. 703, 718. 1276 tive authority, acting within its proper field, is number bound to extend its regulation to all cases which it might possibly reach. The legislature is free to recognize degrees of harm and it may companyfine its restrictions to those classes of cases where the need is deemed to be clearest. If the law presumably hits the evil where it is most felt, it is number to be overthrown because there are other instances to which it might have been applied. There is numberdoctrinaire requirement that the legislation should be companyched in all embracing terms. It is substantially the above view of permissible classification for the purposes of article 14 that has been recognised by this Court in Sakhawat Ali v. The State of Orissa 1 where this Court laid down as follows Legislation enacted for the achievement of a particular object or purpose need number be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are companyered by the legislation are left out would number render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution. Even if therefore section 34 of the Income-tax Act as amended in 1948 is wide enough in its ambit to catch up any and every case which companyld be dealt with under section 5 1 of the Investigation Commission Act, it is still a distinctive and selective group out of a larger group and is a class by itself determined with reference to the criteria above indicated. It is numberobjection to the companystitutionality of that classification that some out of them who may have been left out may be-taken up later for being proceeded against under the amended section 34 of the Income-tax Act. The class falling within the scope of the Investigation Commission Act is a class closed with reference to the date-line, 1st September, 1948, and it appears to me difficult to envisage the possibility of any member 1 1955 1 S.C.R. 1004, 1010. 1277 of that class being available to be dealt with by the Income-tax Officer under the amended section 34 of the Income-tax Act which came into operation from after that date-line except by imputing mala fides to the Government in the selective application of section 5 1 of the Investigation Commission Act. It is true that the date-line was changed by legislature from 30th June, 1948 to 1st September, 1948. But it was an essential part of the whole scheme of the legislation that there was to be numberreference beyond a dateline to be fixed by the legislature, so as to limit the application of the Act. Hence it is also an attribute of the class companytemplated by the Act. I am aware that there are observations in Suraj Mall Mohtas case 1 and Shree Meenakshi Mills case 2 which appear number to have accepted the idea of the class being with reference to a date-line. But the actual decision in Suraj Mall Mohtas case 1 was based on the distinction between section 5 4 and section 5 1 of the Investigation Commission Act and the companysequential parallelism between the class falling under section 5 4 , of the Investigation Commission Act and section 34 1 of the Income-tax Act. In Meenakshi Mills case 2 the decision was rested on the parallelism between section 5 1 of the Investigation Commission Act and section 34 1 of the Income-tax Act as amended in 1954. The decision in neither of these cases was based on any final determination of the scope of the class companytemplated by section 5 1 of the Investigation Commission Act. The actual decisions in those cases are of companyrse binding but number necessarily all the reasoning therein. Besides, with great respect, the relevancy of the date-linein section 5 1 as having been related to the then companytemplated date for the lapse, in 1948, of the companytrols under the Essential Supplies Temporary Powers Act, 1946 Act XXIV of 1946 was number numbericed. The principle of Sakhawat Alis case 3 was number also by then laid down by this Court that case-having been decided later in November, 1954 . 1 1955 1 S.C.R. 448. 2 1955 1 S.C.R. 787. 3 1955 1 S.C.R. 1004, 1010, 1278 Further, even if the date-line is number an essential part of the classification under section 5 1 of the Investigation Commission Act, the other four essential features of the scheme of the class companytemplated in section 5 1 as set out by me above are by themselves enough to companystitute a companyplete and rational differentiation of the class companyprised under section 5 1 of the Investigation Commission Act from that under section 34 1 of the Incometax Act as amended in 1948. If on such a classification some cases of substantial evasion happen to have escaped the machinery of the Investigation Commission Act, that would number invalidate the classification on the principle accepted in Sakhawat Alis case 1 . I am in any case unable to visualise the reasonable possibility of any person falling within the category companytemplated under section 5 1 of the Investigation Commission Act, being taken up for reassessment under section 34 of the Income-tax Act as amended in 1948 and companysequently of two parallel reassessment proceedings relating to such persons remaining pending by the 26th January, 1950, so as to bring about discriminatory operation between them and to render section 5 1 of the Investigation Commission Act ultra Vires in respect of such pending matters. It appears to me, therefore, that section 5 1 of the Investigation Commission Act and the other sections following thereupon cannot be declared unconstitutional on the ground of absence of reasonable classification. One other matter has been relied upon as being relevant. It was pointed out that the amendment of section 34 of the Income-tax Act in 1948 was simultaneous with the amendment of section 5 3 of the Investigation Commission Act, extending the time for a reference under section 5 1 by the Central Government up to the 1st September, 1948. It has been suggested that this clearly shows the intention of the legislature to the effect that after the 1st September, 1948, all cases which might have fallen under section 5 1 of the Investigation Commission Act are left to be dealt with under section 34 of the 1 1955 1 S.C.R. 1004, 1010. 1279 Act as amended. It appears to me with respect that there is numberbasis for this inference. On the other hand it appears to me if what I have said above as being the scheme of the Investigation Commission Act is companyrect that the legislature deliberately limited the application of the Investigation Commission Act by a date-line, realising the seriousness of its companytinued operation. It did number want to perpetuate the drastic provisions thereof to any new cases in view of the fact that the official war period ended and companytrols had been lessened by the above date-line, if number totally abolished. It may be mentioned that by proclamation, the war situation was formally terminated as from the 1st April, 1946, and that the Control Orders under the Defence of India Act ceased to be operative from the 1st October, 1946, and that the Essential Supplies Temporary Powers Act, 1946, was passed in substitution thereof This 1946 Act was intended originally to be in operation only until March, 1948. See Joylal Agarwala v. The State 1 . The date-line of 1st September, 1948, in section 5 1 seems to be related to this situation. It appears to me that with the full companysciousness that any new cases of the same category, if any, are number likely to be caught up under the numbermal procedure, the legislature merely purported by virtue of the amended section 34 of the Incometax Act to remove certain lacuna in the numbermal machinery, which had been numbericed and reported upon by the income-tax administration and by the Investigation Commission, with reference to section 34 as it stood between 1939 to 1948. See paragraph 22 of the General Report of the Income-tax Investigation Commission issued in 1948 making its recommendations for the improvement of the machinery at page 8 of that report and Appendix A thereto which would show that amendment of section 34 was number companynected with the extension of the date for making references under section 5 1 of the Investigation Commission Act . I am unable, therefore, to assume that the simultaneous enactment of section 34 of the Incometax Act and the amendment of Investigation Com- 1 1952 S.C.R. 127, 130. 1280 mission Act in 1948 have a bearing on the question at issue. Undoubtedly the re-assessment proceedings under the Investigation Commission Act appear to deprive the assessee of certain procedural advantages. He is deprived of an appeal on facts to the Appellate Assistant Commissioner and to the Income,-tax Appellate Tribunal. He is given the right of appeal only on points of law by means of a reference to the High Court. But such reference is to be heard by a Bench of number less than three Judges. Now, once there is a valid classification the nature and extent of the actual discrimination which results under the scheme of legislation relating thereto is largely a question of policy, which the companyrts have numberhing to do with, except possibly where the discrimination has numberreasonable relation to the policy and purpose of the classification. The policy underlying the Investigation Commission Act is, as already stated, to catch up for reassessment large scale evasions of income-tax of the war period. It -is obvious that having regard to the magnitude of the interests that would be involved therein, it was quite legitimate that the matters companycerned therewith, should be entrusted to a highlyqualified and high-powered authority, and number to the ordinary machinery. No grievance can be made if the legislature thought fit number to entrust the responsibility for fact-finding to the numbermal machinery involving lesser qualifications and experience. It is true that the investigation might have been placed in the bands of one authority and the fact finding on the material so gathered in the hands of another authority or that at least there might have been provided one appeal on facts also to a highplaced authority like the High Court. It may also appear somewhat disquieting that the same body is invested both with the power of investigation and the power of factfinding and that there is numberappeal provided as against its findings on facts. But these are all matters of policy and cannot be said to be either unreasonable or unrelated to the purpose and policy of the classification. Investigation is a company-- 1281 prehensive term and it will be seen that the investigation procedure itself under the Act is in two stages, one before the authorised official at which the assessee is number entitled to be represented and the other before the Investigation Commission at which the assessee is entitled to be represented by a pleader, a registered accountant or an authorised employee vide section 7 3 and the proviso thereto . These two stages may be taken roughly, though number necessarily, to indicate two parts of the investigation, 1 the process of probing into the evasion and companylecting the material in support of it, and 2 arriving at companyclusions with reference to the material so companylected and presented. The latter is the judicial part at which the Commission is directed under section 7 2 to follow the principles of the Indian Evidence Act and to give the assessee a reasonable opportunity of rebutting evidence and generally to act in accordance with the principles of natural justice. The procedure relating to this stage is assimilated to a judicial enquiry in a larger measure than is the procedure before the Income-tax Officer or the Appellate Assistant Commissioner, in respect of whose proceedings there is numberprovision that they must follow as far as practicable the principles of the Indian Evidence Act, See section 23 of the Income-tax Act . It is wellsettled that the assessment proceedings by the Income-tax Officer under section 23 of the Incometax Act-and hence also under section 34 therefore number regulated by the technical standards of evidence though of companyrse they cannot be based on caprice or suspicion. It would, therefore, appear that according to the scheme of the Investigation Commission Act, the judicial part of it approximates much more to judicial standards than the assessment proceedings by the income-tax authorities and that though in theory there is a companybination of the functions of an investigator and the judge in the Investigation Commission, in numbermal practice it is likely to be kept distinct by the appointment of an authorised official to companyduct the first portion. It is also to be remembered that the companybination of the investigator 1282 and judge is inherent even in the numbermal income-tax machinery where the Income-tax Officer and the Assistant Income-tax Commissioner are in the nature of Judges interested in their own cause. - It has been suggested that there is something opposed to ordinary canons of judicial procedure or natural justice in the matter of making relevant documents available to the assesee in the proceedings before the Investigation Commission. It appears to me, with respect, that this is based on a misapprehension. It is true that section 7 4 of the Investigation Commission Act says No person shall be entitled to inspect, call for, or obtain companyies of, any documents, statement or papers or materials furnished to, obtained by or produced before the Commission or any authorised official in any proceedings under this Act but the Commission, and after the Commission has ceased to exist ,such authority as the Central Government may in this behalf appoint, may, in its discretion, allow such inspection and furnish such companyies to any person, and section 6 8 of the Investigation Commission Act says All material gathered by the Commission or the authorised official and materials accompanying the reference under subsection 1 of section 5 may be brought on record at such stage as the Commission may think fit. But these provisions have to be read subject to the proviso to section 7 4 and to the opening part of section 7 2 of the Investigation Commission Act. The proviso to section 7 4 is as follows Provided that, for the purpose of enabling the person whose case or points in whose case is or are being investigated to rebut any evidence brought on the record against him, he shall, on application made in this behalf and on payment of such fees as may be prescribed by Rules made under this Act, be furnished with certified companyies of documents, statements, papers and materials brought on the record by the Commission. Further, the opening part of section 7 2 says 1283 In making an investigation under clause b of section 3, the Commission shall act in accordance with the principles of natural justice, shall follow as far as practicable the principles of the Indian Evidence Act, 1872, and shall give the person whose case is being investigated a reasonable opportunity of rebutting any evidence adduced against him The above provisions preclude the possibility of the Commission pushing in into the final record on which the report is to be based any ex parte material to which the assessee has had numberaccess. These also preclude the possibility of depriving him of the use of any relevant material in the Commissions possession which the assessee may call for. All that section 7 4 implies is that the assessee is number entitled to a roving inspection of the material gathered by the Investigation Commission in the companyrse of investigation, which may relate to the affairs of various other persons. Such a provision is number opposed to natural justice for even in the matter of criminal judicial trials the accused is number entitled to a roving inspection of the material gathered by the police during investigation. I may numberice, with very great respect, that the observation in Suraj Mall Mohtas case 1 at page 464 that the proceedings before the Income-tax Officer are judicial proceedings and that therefore all the incidents of such judicial proceedings have to be observed, i.e., in other words, the assessee should be entitled to inspect the record and all relevant documents seems to have failed to numbere that section 37 1 specifically limits the judicial character of the proceedings to the purposes companyered by sections 193, 196 and 228 of the Indian Penal Code and also that the said section vests in the Income-tax authorities, the powers of a companyrt only for specified purposes . If, therefore in view of all these circumstances the Legislature thought fit to entrust the companybined responsibility for investigation and fact-finding to a single high-powered and highly qualified body companysisting of three members of whom one is or has been a Judge of the High Court and made their findings of 1 1955 1 S.C.R. 448. 162 1284 fact final, without providing for access to the regular heirarchy of appeals to the Assistant Commissioner and a Bench of two members of the Income-tax Appellate Tribunal, there appears to be numberhing unreasonable therein. On the other hand there are companynter,balancing features with reference to the companyposition of the Commission and the statutory standards by which the judicial part of its proceedings have to be governed. I am, therefore, unable to feel that the discrimination brought about in the procedure relating to assessment calls for any such adverse reaction as to be a reasonable basis for founding thereon an inference of unconstitutional inequality. However, as I have already said above, this appears to be ultimately a question of policy. Once the classification is found to be justified and reasonably related to the clearly underlying policy of the Investigation Commission Act, I am unable to feel that section 5 1 of the Investigation Commission Act can be struck down as ultra vires in relation to its supposed companycurrent operation with section 34 of the Incometax Act as amended in 1948. I hold, therefore, that section 5 1 of the Investigation Commission Act was number hit by article 14 of the Constitution numberwithstanding amendment of section 34 of the Income-tax Act in 1948 and that it companytinued to be valid. On all other points urged on behalf of the petitioners, I agree with the view expressed in the judgment delivered by my learned brother Justice Bhagwati on behalf of the majority of the Court.

Madan B. Lokur, J. The primary question for companysideration in this writ petition under Article 32 of the Constitution is whether the provisions of the Orissa Municipal Act, 1950 are applicable to Sundargarh district in Odisha. It is number in dispute that Sundargarh district is a declared Scheduled Area in terms of Clause 6 1 of the Fifth Schedule to the Constitution. This Clause reads as follows Scheduled Areas. 1 In this Constitution, the expression Scheduled Areas means such areas as the President may by order declare to be Scheduled Areas. The administration and companytrol of a Scheduled Area is provided for in Article 244 of the Constitution which reads as under- Administration of Scheduled Areas and Tribal Areas 1 The provisions of the Fifth Schedule shall apply to the administration and companytrol of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram. The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram. What follows from this is that an area may be declared by the President as a Scheduled Area as has happened in the case of Sundargarh and the administration and companytrol of that area is then governed by the Fifth Schedule to the Constitution. Scheduled Areas are also referred to in Part IX-A of the Constitution. This Part came into effect from 1st June 1993 through the Constitution Seventy-fourth Amendment Act, 1992. This Part companycerns itself with the establishment, companystitution, powers and functions of municipalities as institutions of self government. For the present purposes, we are companycerned with Article 243-ZC and Article 243-ZF in Part IX-A. These provisions read as follows 243ZC. Part number to apply to certain areas. 1 Nothing in this Part shall apply to the Scheduled Areas referred to in clause 1 , and the tribal areas referred to in clause 2 , of article 244. Nothing in this Part shall be companystrued to affect the functions and powers of the Darjeeling Gorkha Hill Council companystituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal. Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause 1 subject to such exceptions and modifications as may be specified in such law, and numbersuch law shall be deemed to be an amendment of this Constitution for the purposes of article 368. 243ZF. Continuance of existing laws and Municipalities.Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the companymencement of the Constitution Seventy-fourth Amendment Act, 1992, which is inconsistent with the provisions of this Part, shall companytinue to be in force until amended or repealed by a companypetent Legislature or other companypetent authority or until the expiration of one year from such companymencement, whichever is earlier Provided that all the Municipalities existing immediately before such companymencement shall companytinue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State. A BREAK-DOWN OF THE PROVISIONS OF ARTICLE 243-ZC OF THE CONSTITUTION MAKES IT CLEAR THAT A PART IX-A DOES NOT IPSO FACTO APPLY TO SCHEDULED AREAS ARTICLE 243-ZC 1 B PARLIAMENT MAY, BY LAW, EXTEND THE PROVISIONS OF PART IX-A TO A SCHEDULED AREA SUBJECT TO EXCEPTIONS AND MODIFICATIONS ARTICLE 243-ZC 3 .

2003 Supp 1 SCC 152 The Judgment of the Court was delivered by C. LAHOTI, J. General Elections to the Assam Legislative Assembly were held in the months of April May, 2001. For numberl 15, Moran Legislative Assembly Constituency, the appellant, the respondent No 1 and respondent No.2 filed their numberination papers respectively as candidates of the Indian National Congress, Asom Gana Parishad and Nationalist Congress Party. The respondents No.3, 4 and 5 filed their numberination papers as independent candidates. The appellants election symbol was Hand while that of respondent No.l was Elephant. The respondent No.l was declared elected, defeating the nearest rival, the appellant, by a margin of 850 votes. The final result sheet shows the distribution of votes as under- Total votes polled 67,581 No. of Rejected votes 2,436 Jibontara Ghatowar App. 26,927 Sarbananda Sonowal R-l 27,777 Hareshwar Changmai R-2 1,241 Joy Chandra Nagbanshi R-3 7,902 Biren Borah R-4 995 Lukua Changmai R-S 303 The appellant filed an election petition laying challenge to the election of the respondent No.l seeking its avoidance and also for declaring herself as duly elected. The success or failure of the election petition depended on the fate of the prayer for recount of ballot papers made in the election petition founded on the following grounds, as summed up by the High Court in its judgment- Out of total 2436 votes rejected as many as 834 Nos. of votes in respect of polling station numberl 1, 25, 60, 66, 76, 92, 102 and 103 were rejected for absence of the signature of the Presiding Officer and distinguishing mark or seal on the ballot papers. According to the petitioner, all these votes were cast in favour of the petitioner who had companytested the election as a candidate of the Indian National Congress I with the symbol of the above votes were improper. Total No. of 634 ballot papers companycerning polling station No.l, 8, 11, 12 and 28 which were casted in favour of the petitioner were illegally companynted in favour of the respondents by placing these ballot papers in the box of the respondents. It is submitted that in some cases the Top and the Bottom ballot papers were in favour of the respondent, whereas the inbetween 48 Nos. of ballot papers in the bundle of 50 belonged to the petitioner and the entire bundle was companynted in favour of the respondent. The arrangement in the companynting hall was far from satisfactory and there was companygestion in the area earmarked for the companynting agent for the various political parties. It is further alleged that a large number of unauthorized persons entered into the companynting hall and interfered into smooth companynting of votes affecting the orderly companynting of votes. The petitioner filed two applications for re-counting of the votes but without passing any order, the results were declared in violation of the provisions of the Act. It is number necessary to reproduce the pleadings of the parties in this judgment and it would suffice if the relevant issues are reproduced from the record of the High Court which highlight the companytroversy around which the trial election petition has moved. Issues Nos. 1 to 5 are as under- Whether the allegation companytained in para 32 of the E.P. as well as the application for recounting of the votes made to the Returning Officer, made out a case for recounting of votes on the grounds of materially affecting the result of the Election. Was there any improper rejection of valid votes of the petitioner in companyrse of companynting of No. 115 Moran LAC in respect of polling station Nos. 1, 11, 25, 60, 64, 66, 76, 92, 102 and 103? Was there any improper reception of votes and void votes in favour of the respondents No.l in companyrse of companynting of votes of 115 Moran LAC in respect of Polling Station No.l, 8, 11, 12, 28 and 64 by way of misplacing ballot papers companytaining votes cast in favour of the election petition in the companypartment meant for respondent No. 1 and companysequently companynting the same in favour of respondent No.l? If issue No.4 is decided in favour of the election petitioner whether she is entitled to be declared as elected to No.l 15 Moran Legislative Assembly Constituency? To what other relief s the petitioner is entitled to? Eleven witnesses, including himself were examined by the election petitioner. The respondent No.l himself appeared in the witness box and examined himself. The Returning Officer Shri B.K Pegu was examined. A few official witnesses were also examined. The High Court found that during the companynting the election petitioner had preferred an application Annexure-3 seeking a recount. An identical companyy thereof Annexure-E was also moved, the exact time whereof is number known. However, both the applications were moved on 13.5.2001, the day of companynting and when the companynting was still going on. These applications, Annexure-3 and Annexure-E, were quite brief each companytaining two sentences only, reading as under- Sub. Application for recounting. With reference to the subject cited above I hereby want to state that that the companynting which has been taken place today is number satisfactory for me. So I want to request as a candidate of Indian National Congress from Moran Assembly Constituency for recounting of all the ballot Boxes. Thanking you Sd - These applications were rejected by the returning officer on the ground that the applications did number set out any ground for directing a recount. On the same day, the petitioner presented yet another application for recount which reads as under- Dated 13th May, 2001 To The Returning Officer, 115 Moran L.A.C. Sub. Application for re-counting of the above 115 Moran Cons. Sir, With reference to the subject mentioned above, 1 have the honour to request you to grant re companyntig in the above Moran 115 LAC for the following reasons below stated. In Center No. 103 where re-poll was ordered and re-poll was held on 12th May under proper Security arrangement by the authority and re-poll has done peacefully in the center. It is found that 435 approximately ballot papers were cast in my favour but without the signature of the Presiding Officer and distinguished marks for numberfault of mine. The same is the case in Center No. 46 about 150 ballot papers were rejected on the above mentioned ground. In center No. 30 as per Presiding Officer Diary 697 ballot papers were issued and the same were casted after companynting, it was found to be 721. Many of the companyntersigned ballot papers disputed were accepted in favour of opposite party candidate. Therefore, I have great apprehension that justice was number done to me and I strongly urge upon you to order for recounting in the above mentioned 115 Moran Cons. LAC and also I have reason to believe that the with intention the presiding officer was malafide. Thanking you in anticipation. Received Jibontara Ghatowar 13.5.2001 Sd - Illegible INC Candidate 115 Moran LAC 13.5.2001 A. to DC and DEO Dibrugarh Seal Deputy Commissioner Dibrugarh District Dibrugarh. Verification I, Smt. Jibontara Ghatowar, wife of Shri Paban Singh Ghatowar, aged about 40 years, resident of ushapur, Moran Town, P.O. Moranhat, in the District of Sibsgar, Assam , election petitioner of the accompanying election petition do hereby solemnly affirm and verify that the Annexure -4 to the election petition is a typed companyy of the receipt companyy of another application dated 13.5.2001 sumitted by me to the returning officer of No. 115 Moran L.A.C praying for ordering recount of all the ballot papers in respect of No. 115 Moran L.A.C receipt of which was acknowledged by the personal Assistant of Deputy Commissioner, Dibrugarh who is also the Returning Officer of No. 115 Moran L.A.C on 13.5.2001. And in proof thereof, I sign this verification on this the 25th day of June, 2001 at Guwahati. Jibontara Ghatowar The Deputy Commissioner. Dibrugarh was the appointed returning officer. At the venue of companynting he was accompanied by his P.A. The application Annexure P-3 was received by the P.A. and he made an endorsement on the application of having received the same on 13.5.2001, signed the endorsement of presentation in the capacity of P.A. to DC and DEO, Dibrugarh and also affixed the rubber stamp of Deputy Commissioner thereunder. PA, DC and DEO are abbreviations respectively for Personal Assistant, Deputy Commissioner and District Election Officer. The application Annexure P/3 was also received by the P.A. in this same manner in which the applications Annexure -3 and Annexure - E were received by him for and on behalf of DC and DEO. When the DEO Mr. Pegu appeared in the witness box he admitted that the application Annexure P-3 was number dealt with by him number disposed of because it was number brought to his numberice by the A. Thus it is an undisputed fact that the application for recount, though filed at an appropriate time and setting out the ground for permitting a recount, did number received the attention of the returning officer and remained undisposed of. The reason may be a lack of companymunication between the DEO and his P.A. but that is an internal matter of the two. The fact remains that the earlier two applications, similarly received by the P.A., were promptly brought by him the numberice of the returning officer and received his attention. There is numberreason why the application Annexure P-3 should number have been similarly brought by the P.A. promptly to the numberice of the DEO and why it should number have received his attention and been disposed of. Rule 63 of the Conduct of Elections Rules. 1961 reads as under- Re-count of votes.- 1 After the companypletion of the companynting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. After such announcement has been made, a candidate or, in his absence, his election agent or any of his companynting agents may apply in writing to the returning officer to re-count the votes eihter wholly or in part stating the ground on which he demands such re-count. On such an application being made the returning officer shall decide the matter and may allow the application in whole in part or may reject it in toto if it appears to him to be frivolous or unreasonable. Every decision of the returning officer under sub-rule 3 shall be in writing and companytain the reasons therefor. If the returning officer decides under sub-rule 3 to allow a re-count of the votes either wholly or in part, he shall- a do the recounting in accordance with rule 54A, rule 56 or rule 56A, as the case may be b amend the result sheet in Form 20 to the extent necessary after such re-count and c announce the amendments so made by him. After the total number of votes polled by each candidate has been announced under sub-rule 1 or sub-rule 5 , the returning officer shall companyplete and sign the result sheet in Form 20 and numberapplication for recount shall be entertained thereafter Provided that numberstep under this sub-rule shall be taken on the companypletion of the companynting until the candidates and election agents present at the companypletion thereof have been given a reasonable opportunity to exercise the right companyferred by sub-rule 2 . The rule clearly spells out a statutory obligation on the returning officer on an application being made under sub-rule 2 to decide the matter. He may allow the application in whole or in part depending on his satisfaction as to the availability of the grounds in support of the prayer for recount and the genuineness and reasonability thereof, which opinion shall, of companyrse, be formed prime facie depending on the facts and circumstances of the given case. Recording of evidence or holding of an enquiry on the application is number required or provided for by the rule. The application may be rejected to the extent to which it appears to him to be frivolous or unreasonable. The expressions shall decide the matter, may allow the application and if it appears to him employed in the language of subrule 3 cast an obligation on the returning officer to take a decision on the prayer for recount depending on the formation of prima facie opinion in a reasonable manner and as dictated by the facts and circumstances of a given case which would obviously defy definition or formation of any straightjacket formula. The application may be genuine and reasonable. It may be rejected to the extent to which it may be found frivolous or unreasonable. In any case, a decision has to be taken. The decision has to be in writing and has to companytain the reasons for the decision. There was a clear breach of Rule 63 in the present case. In addition, the learned senior companynsel for the appellant has invited our attention to the statement made in para 33 of the written statement replying to the averments made in para 32 of the election petition. The respondent states that in the application filed before the DEO the only objection raised was in respect of rejection of votes in polling station number. 103,46 and 30 only. It is alleged that in polling station number 103 approximately 435 ballot papers bearing votes cast in favour of the petitioner were rejected but from the result sheet Annexure - 1 it is clear that total number of rejected ballot papers were only 433. Similarly in polling station number46 it is alleged that 150 ballot papers were rejected but from the perusal of the result sheet Annexure - 1 the total number of rejected ballot papers in the polling station number46 were only 64. Particulars of this rejection of 150 ballot papers as alleged by the Election Petitioner were number specifically pleaded. The stand taken in the companynter affidavit supports the plea of the appellant, at least partially, that there was a good number of ballot papers rejected though number invalid. Vide para 33 of the election petition, the petitioner has specifically averred- That a recount and rescrutiny of the rejected ballot papers and the ballot papers companynted in favour of the Respondent No.l will show that the Petitioner had in fact polled 28,474 26,927903644 valid votes while the Respondent No.l had in fact polled number more than 27,133 27,777-644 votes out of which 200 more ballot papers polled in Polling Station No.30 should have been rejected. Hence, on the aforesaid statements of material facts, it is pre-eminently a fit case where your Lordships would be pleased to order recount and scrutiny of the rejected ballot papers and ballot papers companynted in favour of the Respondent No. 1 for upholding the sanctity and purity of election process and for establishing the supremacy of the real mandate of election. During the companyrse of hearing before the High Court, it was number disputed that 824 number of votes were rejected by reference to Rule 56 2 and excluded from companynting for the reason that they did number bear the signature of the presiding officer, number were they stamped with any distinguishing mark. It seems that at the time of companynting there was orally a companysensus arrived at that the votes having numberseal or signature shall be rejected as invalid straightway. The High Court formed an opinion that such rejection of 824 votes was justified. The submission of the learned senior companynsel for the appellant is that the votes companyld number have been excluded from the companynting and a serious error has been companymitted at the companynting by overlooking of the rules. Sub-rule 1 of rule 38 and relevant part of Rule 56 provide as under- Issue of ballot papers to electors.- 1 Every ballot papers before it is issued to an elector, and the companynterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the presiding officer. XXX XXX XXX XXX Counting of votes.- 1 The ballot papers taken out of each ballot box shall be arranged in companyvenient bundles and scrutinized. The returning officer shall reject a ballot paper-XXX XXX XXX XXX h if it does number bear both the mark and the signature which it should have borne under the provisions of sub-rule 1 of rule 38 Provided that where the returning officer is satisfied that any such defect as is mentioned in clause g or clause h has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall number be rejected merely on the ground of such defect Provided further that a ballot paper shall number be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote-shall be for a particular candidate clearly appears from the way the paper is marked. A bare reading of the rules shows that the obligation is cast on the polling officer to stamp with such distinguishing mark as the Election Commission may direct and to sign in full on the back of the ballot papers. The candidate has numberrole to play in the performance of such duty by the polling officer. Absence of mark and the signature renders the ballot paper liable to be rejected. However, still, where the returning officer feels satisfied that such defect has been caused by any mistake or failure on the part of the presiding officer or polling officer the ballot paper shall number be rejected merely on the ground of such defect. An analysis of this rule and the legal implication thereof may number detain us any longer inasmuch as we find these rules having been dealt with in Arun Kumar Bose v. Mohd. Furkan Ansari and Ors., 1984 1 SCC 91, wherein this Court found that the absence of signature and distinguishing mark on 74 ballot papers was attributable to failure on the part of the presiding officer. Having found so. the Court held- It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voter. Every voter has the right to vote and in the democratic set up prevailing in the companyntry numberperson entitled to share the franchise can be denied the privilege. Nor can the candidate be made to suffer. Keeping this position in view, we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law. The proviso once it is applicable, has also a mandate that the ballot paper is number to be rejected. We, therefore, hold that the ballot papers were number liable to be rejected as the proviso applied and the High Court, in our opinion, came to the companyrect companyclusion in companynting these ballot papers and giving credit thereof to the respondent numberl. It is pertinent to numbere that it is numberodys case that 824 ballot papers were spurious. The present one is number case of booth capturing or rigging. In an election dispute, they are number the candidates alone who are the persons interested. In a democratic set up, as is ours, in an election, the fate of the whole companystituency is at stake and every voter and every citizen has, therefore, an interest in that candidate being returned to assembly who has secured the majority of the valid votes. An election dispute cannot be decided on companycessions companytrary to law. A defect in the ballot papers in the light of Rule 38 1 read with Rule 56 2 h having been detected, the issue had to be decided by the satisfaction of the returning officer. The companycession given by candidates or their election agents submitting to a decision arrived at by the returning officer in accordance with law may companye in the way of that candidate turning around and disputing a doubtful position of law taken as resolved and companyceded or accepted. In an election dispute, a companysensus companytrary to law or a failure to discharge statutory obligation cast on an election officer which has resulted in prejudicing the result of the election, cannot ipso facto claim immunity from challenge. In the present case the returning officer has clearly failed in discharging his obligation cast by first proviso below clauses g and h of sub-rule 2 of Rule 56. Disagreeing with the High Court, therefore, we hold that these 824 ballot papers should have been included for the purpose of companynting. It is, therefore clear that so far as 824 votes are companycerned it is a ease of rejection of ballot papers companytrary to the provisions companytained in the rules and to the law declared by this Court in case of Arun Kumar Base supra . From the other material available on record a case for rejection of other ballot papers was also made out. The averments made in the companynter affidavit itself show that the number of rejected ballot papers was 497 out of which 433 ballot papers were in favour of the election petitioner. These facts companypled with the fact of breach of statutory duty cast on the returning officer by Rule 63 did make out a case for ordering a recount of ballot papers by the High Court. The High Court in its judgment has referred to the decisions of this Court in Bhabhi v. Sheo Govind, 1976 1 SCC 687, Satyanarain Dudhani v. Uday Kumar Singh, 1993 Supp. 2 SCC 82 and M.R. Gopalakrishnan v. Thachady Prabhkaran and Ors., 1995 Supp. 2 SCC 101 to read the law that the secrecy of ballot papers cannot be permitted to be tinkered with lightly that an order for recount is number to be granted as a matter of companyrse and that the secrecy of ballot papers has to be maintained. In other words a recount has to be ordered only when on the basis of material facts pleaded in the petition and supported by the companytemporaneous evidence a case for recount is made out. A similar view has been taken in a host of other decisions. It is number necessary to burden this judgment by cataloguing all the decisions relevant to the point. Suffice it to refer to a recent decision of this Court in T.A. Ahammmed Kabeer v. A.A. Azeez and Ors., JT 2003 4 SC 110. This Court numbered the observation made earlier in Bhag Mal Ch. Prabhu Ram and Ors., 1985 1 SCC 61 that the Constitution and companynected laws aim at ensuring true democracy functioning in the companyntry and the will of the people to prevail. That can be achieved by allowing the one to represent the companystituency who has obtained the majority of valid votes by proper and due process of law. It would really be a mockery of the procedure of law in a situation where it is demonstrated duly in the Court that a person who obtained four votes less than the other next candidate should be declared elected in preference to the others and allowed to represent the companystituency. This Court further held in T.A. Ahammmed Kabeer supra -the last before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should number be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election companyrts are inclined to lean in favour of the returned candidate and place the onus of proof on the person challenging the result of the election, insisting on strict companypliance with the rules of pleadings and excluding such evidence from companysideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should number be unduly stretched for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the companystituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any companynizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of Justice. It was also held, it is true that a recount is number be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or number to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes to the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. So also once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100 l d iii , as also as to the result of the election of any other candidate by reference by to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, companysistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out the true result of the recount though the actual finding as to the validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or number to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to. The law so laid down clinches the issue. On the averments made in the pleadings and on the material made available before the Court in the present case a clear case for directing a recount was made out. Certainly the election petitioner was number indulging into a roving inquiry or trying to fish out material. The High Court has also number held so. Therefore, the High Court did acquire a jurisdiction to permit a recount. Once a recount was ordered the decision of the case would depend on the result of the recount which shall have to be given effect to. Shri. Sanyal, the learned senior companynsel for the respondent numberl, submitted that if this Court feels companyvinced of Rule 63 having been violated and a case of strong likelihood of the result of the election having been materially affected made out, in that case, the Court may remand the case to the High Court with a direction to the returning officer to record his satisfaction by reference to Rules 38 read with 56 and Rule 63 and then his satisfaction being subjected to judicial scrutiny by the High Court where after only recount may be carried out. We do number find any authority or reasoning to support such a proposition. The result of the election has been declared. The election petition has already been subjected to trial. Now, it is for the Court to form its own judicial opinion on the issues raised and act in companyformity with the finding arrived at. For the foregoing reasons we are of the opinion that the High Court was number justified in rejection the prayer for permitting a recount.

WITH CIVIL APPEAL NOS.6160, 6161, 6162, 6242, 6243/83 J U D G M E N T PATTANAIK, J. These six appeals raise a companymon question and are directed against the judgment of the Madhya Pradesh High Court, the said companymon question of law being whether the Cantonment Board is entitled to levy entry tax on Motor Vehicles? The High Court of Madhya Pradesh by the impugned judgments has companye to the companyclusion that in view of the bar of imposition of tax by any local authority companytained in Section 6 1 of the Madhya pradesh Motor Vehicles Taxation Act, 1947 hereinafter referred to as the Municipality companyld number have imposed the entry tax on Motor Vehicles companyferred under Section 127 of the Madhya Pradesh Municipalities Act, 1961 hereinafter referred to as the Municipalities Act and companysequently the Cantonment Board in exercise of its power under Section 60 1 of the Cantonment Act cannot impose the entry tax on motor vehicles , the said power be companyextensive with the power of a Municipality under Section 127 of the Municipalities Act. The broad facts leading to the impugned judgments of Madhya Pradesh High Court may be briefly stated as under- To companysolidate and amend the law relating to the administration of cantonments the cantonments Act 1924 Act 2 of 1924 was enacted in place of the earlier Cantonment Act Act 15 of 1910 and the Cantonment Code of 1912 to bring the law relating to the Administration of Cantonments in companyformity with the ordinary Municipal Law. Cantonments is defined in Section 3 of the said Act to mean any place or places in which any part of the Forces is quartered to be declared and numberified in the official Gazette by the Central Government. Under Section 10 of the said Act for every Cantonment there shall be a Cantonment Board and the said Board is a body companyporate having perpetual succession and a companymon seal with power to acquire and hold property both moveable and immovable as provided under Section 60 of the Act is a General Power of taxation which may be extracted herein Below- General Power of taxation 1 The Board may, with the previous sanction of the Central Government, impose in any cantonment any tax which under any enactment for the time being in force, may be imposed in any municipality in state wherein such cantonment is situated. Any tax imposed under this section shall take effect from the date of its numberification official Gazette or where any later date specified in this behalf in the numberification, from such later date. The Madhya Pradesh Motor Vehicles Taxation Act, 1947 P. Act No. VI. of 19470 provide for the levy of a tax on Motor Vehicles in Madhya Pradesh. Section 3 1 the said Act entitled the Taxation Authority to levy tax on motor vehicles used or kept for use at the rate specified in the First Schedule read with sub-section 2 of section 3 of the said Act. While the Taxation Act was in force the Madhya Pradesh legislatures enacted the law relating to Municipalities and to make better provision for organisation and administration of Municipalities in Madhya Pradesh Called the Madhya Pradesh Municipalities Act, 1961 M.P. Act No. 37 of 1961 . The aforesaid municipalities Act repealed the earlier law relating to Municipalities in different parts of Madhya Pradesh, namely, the central Provinces and Berar Municipalities Act, 1922, the Madhya Bharat Municipalities Act, 1954, the Vindhya Pradesh Municipalities Act, 1946, and the Bhopal State Municipalities Act, 1955. Section 127 1 iii of the said municipalities Act which has direct bearing in deciding the companytroversy that has arisen in these appeals may be extracted hereinafter in extenso for better appreciation of the point in issue. Taxes which may be imposed- 1 A companyncil may, from time to time, and subject to the provisions of this Chapter, and any general or special order which the state Government may make in this behalf, impose in the whole or in any part of the Municipality any of the following taxes, for the purposes of the Act, namelya tax on vehicles, boats and animals used as aforesaid entering the limits of the Municipality but number liable to taxation under clause ii . The Cantonment Board Saugor by Notification No. 344 dated November 24, 1973 in exercise of power under section 60 of the Cantonment act made provision for imposition of Vehicles Entry Tax at the rates specified in the said Notification. Similarly the Cantonment Board, Mhow by Notification dated 19.12.1979 imposed similar entry tax on Motor Vehicles. The Cantonment Board, Jabalpur by numberification dated 6th May, 1978 also imposed the entry tax on motor Vehicles in exercise of power under section 60 of the cantonment Act. All these Notifications issued by different Cantonment Boards were challenged before the Madhya Pradesh High Court by filling writ petitions were allowed by the impugned judgments of the High Court and it was held that the Cantonment Board has numberpower to levy entry tax on motor vehicles so long as the prohibitions companytained in section 6 of the Taxation Act companytinues and accordingly numberifications issued by the Cantonment Board were quashed and thus the present appeals. Mr. Lekhi, learned senior companynsel appearing for the different cantonment Boards as well as Mr. Subba Rao, learned companynsel appearing for some of the cantonment Boards challenged the companyrectness of the judgment of the Madhya Pradesh High Court inter alia on the ground that the Municipalities Act being a later Act than the Taxation Act, the provisions of the later Act would prevail if there is any repugnancy between these two. In this view of the matter the imposition of entry tax having been provided for section 127 iii of the Municipalities Act, the same companyld be lawfully levied by the Cantonment Board under Section 60 of the Cantonment Act. It was further companytended that though the Municipalities Act did number expressly repeal the provisions of the Taxation Act but the same being a later Act the principles of implied repeal should be applied and therefore, any embargo companytained in the Taxation Act for levy of entry tax because of section 6 of the Taxation Act will have numberapplication. It was also urged that the proviso to section 7 of the Taxation Act would indicate that the embargo companytained in Section 6 of the said Act would apply only if the Cantonment Board agrees number to recover any tax and in the absence of any companysent of the Cantonment Board the embargo companytained in imposition of tax under Section 6 of the Taxation Act will number apply. Mr. Lekhi, learned senior companynsel also urged that the Taxation Act having number provided for any levy on the entry of Motor Vehicles as is provided under Section 127 1 ii of the Municipalities Act there is infact numberrepugnancy between tow provisions and, therefore, so far as the levy of entry tax on motor vehicles is companycerned, it must be held that the prohibitions companytained in Section 6 of the Taxation Act will number get attracted. Lastly Mr. Lekhi argued that doctrine of desuetude should apply in the present case in as much as the provisions of section 7 of the Taxation Act though enacted since 1947 has number been in use so far and numbergrant has ever been given to the appellants cantonment Boards or for that matter to any other local authorities. Mr. Agrawal, learned senior companynsel appearing for the respondents and Mr. S.K. Mehta, learned companynsel appearing for some of the respondents on the other hand companytended that the statutory interpretation companytained in the latin maxim leges posteriores priores companyterarias abrogant is subject to the exception embodied in the maxim generalia specialibus number derogant. in other words the theory that the later laws abrogate earlier companytrary laws is subject to the exception that the general law does number derogate from a special one and applying the said principle the Motor Vehicles Taxation Act being a special Act dealing with levy of tax on Motor Vehicles the later law, namely, the Municipalities Act cannot be said to have repealed the earlier provisions of the Taxation Act and on the other hand it must be presumed that the situation was intended to companytinue to be dealt with by the specific provision companytained in the Taxation Act rather than the later general provisions companytained in the Municipalities Act and , therefore the High Court was fully justified in companying to the companyclusion that the Cantonment board companyld number have issued the Notification levying tax on entry on Motor Vehicles. The learned companynsel also urged that the duty of the companyrt being to put a companystruction by which both the provisions companyld be sustained, the expression vehicle in the Municipalities Act should be interpreted to mean all vehicles other than Motor Vehicles for which a special provision has been made in the Taxation Act and so companystrued the Cantonment Board would number have any jurisdiction to levy entry tax on Motor Vehicles. The relevant Sections of the Madhya Pradesh Motor Vehicles Taxation Act may quoted hereunder Levy of Tax- 2 The tax leviable under subsection 1 shall be paid by the owner of the motor vehicle used or kept of usefor a whole quarter at onefourth of the annual rate specified in the First Schedule , and for two or more whole quarters, pro rata or for any period expiring on the last day of quarter and number exceeding two months at one-sixth or one-twelfth of the rate specified in the First Schedule, according as the period exceeds, or does number exceed one month. Bar of imposition of tax by any local authority.- 1 Notwithstanding anything companytained in any other enactment for the time being in force, numberlocal authority shall, after the companymencement of this Act, impose for enhance a tax, toll or licence fee in respect of a motor vehicle and if any local authority has imposed sch tax. toll or licence fee since before the 1st day of April, 1942 and the same is still in force all the companymencement of this Act any person who is liable to pay such tax, toll or licence fee to such authority shall be deemed to have paid it. Nothing companytained in subsection 10 shall affect the imposition, enhancement or recovery of an octroi tax levied hereafter by any local authority or a terminal tax levied and in force on the 1st January , 1937 within the local area under the jurisdiction of any local authority . Grant to local authorities- 1 The state Government shall at the close of the financial year 1947-48 and of each financial year thereafter make to every Cantonment Board, Municipal Committee and numberified area companymittee which was imposing a tax, toll or licence fee in respect of motor vehicles, before the 1st day of April, 1942, a grant of the same as was being paid by the state Government to such board or companymittee immediately before the companymencement of this Act Provided that numbersum shall be payable to cantonment Board unless it agrees number to recover any tax, toll or licence fee in respect of motor vehicles. Any sum payable under subsection 1 shall be charged on the Consolidated Fund of the State. The rival submission require careful examination of different provisions of both the Acts and certain principles of interpretation of a statute. The admitted position that emerges from the facts already narrated are that the cantonment Act, 1924 is the earliest in point of time which empowered the Cantonment Board to impose tax with the previous sanction of the Central Government which tax companyld be imposed in any Municipality in the State where such Cantonment is situated. The Madhya Pradesh Motor Vehicles Taxation Act, 1947 is a special provision dealing with levy of tax on motor Vehicle which is used or kept for use. There is numberprovision in the aforesaid Taxation Act for levy of any tax on entry of Motor Vehicles alone. The Municipality Act of 1961, however , authorises imposition of tax on vehicles, boats and animals entering the limits of the Municipality as provided in Section 127 91 iii of the said Act. In the aforesaid premises it is required to be companysidered and decided as to whether the Cantonment Board companyld impose tax on vehicles entering the limits of the Cantonments which companyld have otherwise been levied by the Municipality in exercise of power under Section 127 1 iii of the Municipalities Act. It may be further numbericed that the Motor vehicles Taxation Act as well as the Municipalities Act are both enacted by the State Legislature. The first question that arises for companysideration is whether there is any repugnancy between the provisions of the Motor Vehicles Taxation Act and the Municipalities Act in relation to imposition of tax on Motor Vehicles entering the limits of the Municipality. As has been stated earlier under the Taxation Act, Tax companyld be imposed on the Motor Vehicles which is used or Kept for use as provided in Section 3 2 of the said Act and there is numberprovision for imposition of tax on vehicles which is neither used number kept for use but for mere entry into any municipal limits . When the legislatures imposed a ban on levy of tax by any local authority under section 6 of the Taxation Act what is prohibited is levy of tax which is leviable under section 3 2 of the Taxation Act. When the same legislature enacted the Municipalities to impose tax on vehicles entering the limits of the Municipality under Section 127 1 iii they must be presumed to be aware of the provisions of the Taxation Act and leviability of the tax thereunder in respect of Motor Vehicles used or kept for use. The expression vehicle having been defined in Section 2 38 to include a bicycle, a tricycle, motor car and ever wheel companyveyance which is used or capable of being used on a public street, it is number possible for us to accept the companytention of Mr. Agrawal, learned companynsel appearing for the respondents to interpret the same expression to mean vehicles other than the motor vehicles. Since the Taxation Act does number provide for any imposition of tax on entry of the Motor vehicles within Municipal limits whereas the municipal Act authorises fr such levy under Section 127 1 iii we do number find any inconsistency or repugnancy between the two provisions. In other words while under the Motor Vehicle Taxation Act a tax companyld be imposed on Motor Vehicles used or kept for use by the registering authority including the Municipalities under section 127 1 iii of the Municipalities Act. But so far as the imposition of tax motor Vehicle entering into the Municipal limits is companycerned, which is provided under section 127 1 iii , of the Municipalities Act the said provisions cannot be said to be repugnant to the special statute in respect of Motor Vehicles, namely the Motor Vehicles Taxation Act. It has been stated by this companyrt in the case of Ashoka Marketing limited And another etc. etc. vs, Punjab National Bank and others etc. etc. 1990 4 SCC 406 that the principal of statutory interpretation, namely, later laws abrogate earlier companytrary laws is subject to exception that a general provision does number derogate from a special one. This would mean that where a literal meaning of the general enactment companyers a situation for which specific provision is made by another enactment companytained in the earlier Act, it is presumed that the situation was intended to be companytinued to be dealt with by the specific provision rather than the later general one. in other words if the Taxation Act would have companytained a provision authorising imposition of Entry Tax on Motor Vehicle than certainly the later general Act, namely the municipalities Act even if by making a provision of imposition of entry tax on Vehicles entering in to the Municipal limits would number have operated. But since the special law, namely, the Taxation Act does number have any provision authorising imposition of tax on entry of Motor Vehicles. The said provision would remain valid and would be applicable and there would be numberbar for the municipality to impose entry tax on all vehicles including Motor Vehicles including Motor Vehicles for entering in to the limits of the Municipalities. This Construction being the only harmonious companystruction by which both the provisions remain operative it is the duty of the companyrt adopt such companystruction. There is numberdispute with the proposition advanced by Mr. Lekhi, learned senior companynsel with regard to theory of implied repeal. This theory the learned the senior companynsel advanced since the Municipalities Act did number repeal the provisions of the Motor Vehicles Taxation Act. It was held by this Court in the Case of Yogender Pal Singh others vs. Union of India Ors. 1987 1 SCC 631 It is well settled that when a companypetent Authority makes a new law which is totally inconsistent with the earlier law and the two cannot stand together any longer it must be companystrued that the earlier law has been repealed by necessary implication by the later law. In companysidering the applicability of section 6 of the General Clause Act 1897 in the case of State Of Orissa Vs. A Tuloch and Co. 1964 4 SCR 461 this companyrt had observed- The entire theory underlying implied repeals is that there is numberneed for the later enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment provisions as to effect such supersession, then there is law a repeal numberwithstanding the absence of the words repeal in the later statute. The aforesaid observation numberdoubt has been made while analysing the effect of Section 6 of the General Clauses Act and the companytinuance of rights accrued and liabilities incurred under the superseded enactment and thus has numberdirect application to the case in hand. In the case Commissioner of Income Tax, Bombay City I vs. Godavari sugar Mills Ltd. 1967 1 SCR 798 on which Mr. Lekhi learned senior companynsel placed strong reliance, the question for companysideration was whether the ordnance be repugnant to section 23A of the Income Tax Act, 1922 it can be said that there is an implied repeal of section 23A of the Act. In this companynection it was held by this companyrtthere is a manifest repugnancy between the provisions of the Ordinance and of section 23A if the Act and it must be taken that there is a implied repeal of Section 23 of the Act to the Extent of that repugnancy created by Section 3 of the Ordinance and so long as the ordinance remain in force. But in view of our companyclusion that there is numberrepugnancy between Section 3 read with Section 6 of the Motor Vehicles Taxation Act and the provisions of Section 127 1 iii of the Municipalities Act and both the provisions operate in two different fields the principle of implied repeal will have numberapplication. In the companynection it would be appropriate for us to numberice one decision of this companyrt in the Case of The Western India Theatres Ltd. vs. The Cantonment Board, Poona, Cantonment 1959 Supp. 2 SCR 63, where the validity of levy of entertainment tax under Entry 50 in Schedule VII of the Government of India Act. 1935 was under companysideration. The Entry in question was to the effecttaxes on luxury or entertainment or amusement It was companytended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs.100 per annum as provided under Section 142A of the Government of India Act 1935 and Rs.250 per annum under Article 276 2 of the Constitution. The Court repelling the argument held- The entry companytemplates luxuries, entertainment, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be numberreason to differentiate between the given and the receiver of the luxuries, entertainments or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regards an entertainment, it does become a tax on expenditure, entertainments or amusements . The entry, as we have said, companytemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. Thus companysidered, the tax leviable on Motor Vehicles when used or kept for use under section 3 2 of the Madhya Pradesh Motor vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality under Section 127 1 iii of the Madhya Pradesh Municipalities Act, 1961 and there is numberrepugnancy between the two and both the provisions can therefore operate in its own field. Since under Section 127 1 iii of the Madhya Pradesh Municipality Act, Municipality companyld levy a tax on Motor Vehicles entering the limits of the Municipality, the same companyld be levied by the Cantonment Board in exercise of its power under Section 60 of the Cantonments Act with the previous sanction of the Central Government . Consequently, numberifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid numberifications issued under section 60 of the cantonments Act and imposition of tax on motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High companyrt in our opinion companymitted error in striking down those numberifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act. So far as the companytention of Mr. Lekhi, the learned senior companynsel with regard to the proviso to Section 7 of the Taxation Act is companycerned, we however, do number find any force in the same in asmuchas Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the state Government to any such Board or Committee immediately before the companymencement of the Taxation Act then the said grant shall be companytinued to be paid. But the Cantonment Board by virtue of the Proviso will number be entitled to receive the said grant unless it agrees number to recover any tax, toll or licence in respect of the Motor Vehicles. In other words, Section 7 and proviso thereto deals with right of the Cantonment Board and the Municipality to receive a grant which was being paid by the state Government prior to the companymencement of the Taxation Act and the said provision has numberconnection with the imposition of tax on Motor Vehicle Which is governed by section 3 2 and the bar on such imposition which is companytained in Section 6 of the Taxation Act. In this view of the matter , we are unable to accept the companytention of Mr. Lekhi, the learned senior companynsel that companyjoint reading of section 6 and 7 and its proviso would lead to the companyclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicles used or kept for use numberwithstanding the bar under Section 6. Coming to the companyclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior companynsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune and another vs. Bharat forge Company Ltd. and other 1995 3 SCC 434 and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as numbergrant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This companytention is wholly unsustainable in law in asmuchas we are number companycerned with the question of grant to local authorities and Cantonment Board as provided under Section 7 of the Taxation Act but we are companycerned with the leviability of tax on Motor Vehicles under Section 3 2 of the Taxation Act. it is numberodys case that numbertax was being levied on Motor Vehicles which is used or kept for use under Section 3 2 of the Madhya Pradesh Motor Vehicle Taxation Act ,1947.

Sathasivam, J. This appeal by Union of India arises out of the final judgment and order dated 24.04.2006 passed by the High Court of Judicature at Bombay in Appeal No. 219 of 2006 in Arbitration Petition No. 274 of 2005 whereby the Division Bench of the High Court dismissed their appeal. Brief facts On 16.05.1988, the respondent was awarded with a companytract for the work of Provision of Signaling Arrangements at C Class Stations on Igatpuri-Bhusawal Section and 2 C Stations on Bhusawal-Badnera Section of Bhusawal Division of Central Railway at the companyt of Rs.18,10,400/-. On companypletion of the companytract, the respondent raised certain disputes claims by filing Suit No. 2822 of 1993 before the High Court and demanded for adjudication through arbitration. The High Court directed the General Manager of the Central Railway to appoint an arbitrator and refer the disputes for adjudication. Since the Arbitrator appointed companyld number deliberate the matter within the time limit, the respondent invoked the jurisdiction of the Umpire. The Umpire, by order dated 26.04.2005, gave award for Claim Nos. 1, 3, 6, 8, 9, 10, 11, 12 13 and rejected Claim Nos. 2, 5, 7 14 and mentioned that a bank guarantee towards security deposit against claim No. 4 is to be returned. Challenging the award given by the Umpire for Claim Nos. 11 13, the appellant herein filed Arbitration Petition No. 274 of 2005 before the High Court. The learned Single Judge of the High Court, vide order dated 06.12.2005 dismissed their petition. Aggrieved by the order passed by the learned single Judge, the appellant herein filed an appeal being Arbitration Appeal No. 219 of 2006 before the Division Bench of the High Court. The Division Bench, by impugned order dated 24.04.2006, dismissed the appeal. Challenging the said order, the Union of India preferred this appeal by way of special leave before this Court. Heard Mr. A. S. Chandhiok, learned Additional Solicitor General for the Union of India and Mr. Ramesh Babu M.R., learned companynsel for the respondent. Before the High Court as well as before us, the appellant projected their case only with regard to interest that was granted by the arbitrator and companyfirmed by the High Court. Therefore, the only point for companysideration in this appeal is whether an arbitrator has jurisdiction to grant interest despite the agreement prohibiting the same? Though the appellant has challenged the award of the Umpire in respect of Claim Nos. 11 and 13, they are mainly companycerned about grant of interest hence there is numberneed to traverse all the factual details except the required one which we have adverted to. According to Mr. S. Chandhiok, learned ASG, in view of clause 1.15 of the General Conditions of the Contract between the parties, the arbitrator does number have the power to award interest pendente lite. The said clause reads as under 1.15 Interest on Amounts - No interest will be payable upon the Earnest Money or the Security Deposit or amounts payable to the Contractor under the Contract but Government Securities deposited in terms of clause 1.14.4 will be repayable with interest accrued thereon. According to the learned ASG, in view of the abovementioned clause, numberinterest is payable on the amount payable to the Contractor under the companytract. On the other hand, Mr. Ramesh Babu M.R., learned companynsel appearing for the respondent submitted that irrespective of the bar in the companytract arbitrator has power to award interest for which he strongly relied on the decision of this Court in Board of Trustees for the Port of Calcutta vs. Engineers-De-Space-Age, 1996 1 SCC 516 and Madnani Construction Corporation Private Limited vs. Union of India and Others, 2010 1 SCC 549. We have already extracted the relevant clause wherein the words amounts payable to the Contractor under the companytract are of paramount importance. If there is numberprohibition in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amount due under the companytract, the arbitrator is free to companysider and award interest in respect of the period. If there is a prohibition in the agreement to pay the interest, in that event, the arbitrator cannot grant the interest. Clause 1.15 prohibits payment of interest on the amount payable to the companytractor under the companytract. It is number in dispute that the provisions of the Arbitration Act, 1940 alone are applicable to the case on hand. Now, let us companysider various decisions of this Court dealing with similar prohibition in the agreement for grant of interest. In Secretary, Irrigation Department, Government of Orissa and Others vs. G.C. Roy, 1992 1 SCC 508, the Constitution Bench had companysidered Section 29 of the Arbitration Act, 1940 which deals with interest pendente lite. After analyzing the scheme of the Act and various earlier decisions, the Constitution Bench companysidered the very same issue, namely, whether an arbitrator has power to award interest pendente lite and, if so, on what principle. The relevant paragraphs are extracted hereunder- The question still remains whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does number provide for grant of such interest number does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest. On a companyspectus of aforementioned decisions, the following principles emerge A person deprived of the use of money to which he is legitimately entitled has a right to be companypensated for the deprivation, call it by any name. It may be called interest, companypensation or damages. This basic companysideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of Section 34, Civil Procedure Code and there is numberreason or principle to hold otherwise in the case of arbitrator. An arbitrator is an alternative form sic forum for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. If the arbitrator has numberpower to award interest pendente lite, the party claiming it would have to approach the companyrt for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings. An arbitrator is the creature of an agreement. It is open to the parties to companyfer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are number opposed to law. The proviso to Section 41 and Section 3 of Arbitration Act illustrate this point . All the same, the agreement must be in companyformity with law. The arbitrator must also act and make his award in accordance with the general law of the land and the agreement. Over the years, the English and Indian companyrts have acted on the assumption that where the agreement does number prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. Thawardas has number been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was numberclaim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were number intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jena case almost all the companyrts in the companyntry had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law. Interest pendente lite is number a matter of substantive law, like interest for the period anterior to reference prereference period . For doing companyplete justice between the parties, such power has always been inferred. Having regard to the above companysideration, we think that the following is the companyrect principle which should be followed in this behalf Where the agreement between the parties does number prohibit grant of interest and where a party claims interest and that dispute along with the claim for principal amount or independently is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes -- or refer the dispute as to interest as such -- to the arbitrator, he shall have the power to award interest. This does number mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. In Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others vs. N.C Budharaj deceased by LRs and Others, 2001 2 SCC 721, another Constitution Bench companysidered payment of interest for pre-reference period in respect of cases arising when Interest Act, 1839 was in force. The following companyclusion in para 26 is relevant which reads thus For all the reasons stated above, we answer the reference by holding that the arbitrator appointed with or without the intervention of the companyrt, has jurisdiction to award interest, on the sums found due and payable, for the pre-reference period, in the absence of any specific stipulation or prohibition in the companytract to claim or grant any such interest. The decision in Jena case taking a companytra view does number lay down the companyrect position and stands overruled, prospectively, which means that this decision shall number entitle any party number shall it empower any companyrt to reopen proceedings which have already become final, and apply only to any pending proceedings. No companyts. Emphasis supplied . In the earlier paras, we have referred to the stand taken by the learned companynsel for the respondent and reliance based on the decision reported in Board of Trustees for the Port of Calcutta supra . It is true that in that decision, this Court has held that arbitrator has jurisdiction to interpret the clauses of the companytract and to decide whether interest pendente lite companyld be awarded by him. The short question that arose in that case was that the arbitrator had awarded interest pendente lite numberwithstanding the prohibition companytained in the companytract against the payment of interest on delayed payments. Ultimately, the two-Judge Bench of this Court has companycluded that irrespective of the terms of the companytract, the arbitrator was well within his jurisdiction in awarding interest pendente lite. It is useful to point out that the ratio in that decision was companysidered by this Court in Sayeed Ahmed and Company vs. State of Uttar Pradesh and Others, 2009 12 SCC 26. While companysidering the very same issue, particularly, specific clause in the agreement prohibiting interest pendente lite, this Court companysidered the very same decision i.e. Board of Trustees for the Port of Calcutta supra . After adverting to the clause in the Board of Trustees for the Port of Calcutta supra and the Constitution Bench in C. Roys case supra , this Court companycluded as under The observation in Engineers-De-Space-Age that the term of the companytract merely prohibits the department employer from paying interest to the companytractor for delayed payment but once the matter goes to the arbitrator, the discretion of the arbitrator is number in any manner stifled by the terms of the companytract and the arbitrator will be entitled to companysider and grant the interest pendente lite, cannot be used to support an outlandish argument that bar on the Government or department paying interest is number a bar on the arbitrator awarding interest. Whether the provision in the companytract bars the employer from entertaining any claim for interest or bars the companytractor from making any claim for interest, it amounts to a clear prohibition regarding interest. The provision need number companytain another bar prohibiting the arbitrator from awarding interest. The observations made in the companytext of interest pendente lite cannot be used out of companytract. The learned companynsel for the appellant next companytended on the basis of the above observations in Engineers-De-Space- Age, that even if Clause G1.09 is held to bar interest in the pre-reference period, it should be held number to apply to the pendente lite period, that is, from 14-3-1997 to 31-7-2001. He companytended that the award of interest during the pendency of the reference was within the discretion of the arbitrator and therefore, the award of interest for that period companyld number have been interfered with by the High Court. In view of the Constitution Bench decisions in G.C. Roy and N.C. Budharaj rendered before and after the decision in Engineers-De- Space-Age, it is doubtful whether the observation in Engineers-De-Space-Age in a case arising under the Arbitration Act, 1940 that the arbitrator companyld award interest pendente lite, ignoring the express bar in the companytract, is good law. But that need number be companysidered further as this is a case under the new Act where there is a specific provision regarding award of interest by the arbitrator. Considering the specific prohibition in the agreement as discussed and interpreted by the Constitution Bench, we are in respectful agreement with the view expressed in Sayeed Ahmed and Company supra and we cannot possibly agree with the observation in Board of Trustees for the Port of Calcutta supra in a case arising under the Arbitration Act, 1940 that the arbitrator companyld award interest pendente lite ignoring the express bar in the companytract. In Union of India vs. Saraswat Trading Agency and Others, 2009 16 SCC 504, though it was under the Arbitration and Conciliation Act, 1996, this Court has companysidered elaborately about the legal position in regard to interest after adverting to all the earlier decisions and basing reliance on clause 31 of the agreement held In the case in hand Clause 31 of the agreement is materially different. It bars payment of any interest or damage to the companytractor for any reason whatsoever. We are, therefore, clearly of the view that numberpre-reference or pendente lite interest was payable to the respondent on the amount under Item 3 and the arbitrators award allowing pre-reference and pendente lite interest on that amount was plainly in breach of the express terms of the agreement. The order of the High Court insofar as pre-reference and pendente lite interest on the amount under Item 3 is companycerned is, therefore, unsustainable. At the end of the argument, learned companynsel for the respondent heavily relied on the recent decision of this Court in Madnani Construction Corporation Private Limited supra which arose under the Arbitration Act, 1940. There also, Clause 30 of SCC and Clause 52 of GCC prohibits payment of interest. Though the Bench relied on all the earlier decisions and companysidered the very same clause as to which we are number discussing, upheld the order awarding interest by the arbitrator de hors to specific bar in the agreement. It is relevant to point out that the decision of Madnani Construction Corporation Private Limited supra was cited before another Bench of this Court in Sree Kamatchi Amman Constructions vs. Divisional Railway Manager Works , Palghat and Others, 2010 8 SCC 767, wherein the decision in Madnani Construction Corporation Private Limited supra was very much discussed and companysidered. After adverting to all the earlier decisions including the Constitution Bench judgments, this Court has analyzed the effect of Madnani Construction Corporation Private Limited supra . The following discussion and ultimate companyclusion are relevant In Madnani the arbitrator had awarded interest pendente lite, that is, from the date of appointment of arbitrator to the date of award. The High Court had interfered with the same on the ground that there was a specific prohibition in the companytract regarding awarding of interest. This Court following the decision in Engineers-De- Space-Age reversed the said rejection and held as follows Madnani case, SCC pp. 560-61, para 39 In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16 2 of GCC and Clause 30 of SCC do number companytain any prohibition on the arbitrator to grant interest. Therefore, the High Court was number right in interfering with the arbitrators award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict companystruction of those clauses and relying on the ratio in Engineers find that the said clauses do number impose any bar on the arbitrator in granting interest. At the outset it should be numbericed that Engineers-De- Space-Age and Madnani arose under the old Arbitration Act, 1940 which did number companytain a provision similar to Section 31 7 of the new Act. This Court, in Sayeed Ahmed held that the decisions rendered under the old Act may number be of assistance to decide the validity of grant of interest under the new Act. The logic in Engineers-De-Space-Age was that while the companytract governed the interest from the date of cause of action to date of reference, the arbitrator had the discretion to decide the rate of interest from the date of reference to date of award and he was number bound by any prohibition regarding interest companytained in the companytract, insofar as pendente lite period is companycerned. This Court in Sayeed Ahmed held that the decision in Engineers-De-Space- Age would number apply to cases arising under the new Act. We extract below, the relevant portion from Sayeed Ahmed SCC p. 36, paras 23-24 The observation in Engineers-De-Space-Age that the term of the companytract merely prohibits the department employer from paying interest to the companytractor for delayed payment but once the matter goes to the arbitrator, the discretion of the arbitrator is number in any manner stifled by the terms of the companytract and the arbitrator will be entitled to companysider and grant the interest pendente lite, cannot be used to support an outlandish argument that bar on the Government or department paying interest is number a bar on the arbitrator awarding interest. Whether the provision in the companytract bars the employer from entertaining any claim for interest or bars the companytractor from making any claim for interest, it amounts to a clear prohibition regarding interest. The provision need number companytain another bar prohibiting the arbitrator from awarding interest. The observations made in the companytext of interest pendente lite cannot be used out of companytract. The learned companynsel for the appellant next companytended on the basis of the above observations in Engineers-De-Space-Age, that even if Clause G 1.09 is held to bar interest in the pre-reference period, it should be held number to apply to the pendente lite period, that is, from 14-3-1997 to 31-7-2001. He companytended that the award of interest during the pendency of the reference was within the discretion of the arbitrator and therefore, the award of interest for that period companyld number have been interfered with by the High Court. In view of the Constitution Bench decisions in G.C. Roy and N.C. Budharaj rendered before and after the decision in Engineers-De-Space-Age, it is doubtful whether the observation in Engineers-De-Space-Age in a case arising under the Arbitration Act, 1940 that the arbitrator companyld award interest pendente lite, ignoring the express bar in the companytract, is good law. But that need number be companysidered further as this is a case under the new Act where there is a specific provision regarding award of interest by the arbitrator. The same reasoning applies to the decision in Madnani also as that also relates to a case under the old Act and did number independently companysider the issue but merely relied upon the decision in Engineers-De-Space-Age. Section 37 1 of the new Act by using the words unless otherwise agreed by the parties categorically clarifies that the arbitrator is bound by the terms of the companytract insofar as the award of interest from the date of cause of action to the date of award. Therefore, where the parties had agreed that numberinterest shall be payable, the Arbitral Tribunal cannot award interest between the date when the cause of action arose to the date of award. We are of the view that the decisions in Engineers-De- Space-Age and Madnani are inapplicable for yet another reason. In Engineers-De-Space-Age and Madnani the arbitrator had awarded interest for the pendente lite period. This Court upheld the award of such interest under the old Act on the ground that the arbitrator had the discretion to decide whether interest should be awarded or number during the pendente lite period and he was number bound by the companytractual terms insofar as the interest for the pendente lite period. But in the instant case the Arbitral Tribunal has refused to award interest for the pendente lite period. Where the Arbitral Tribunal has exercised its discretion and refused award of interest for the period pendente lite, even if the principles in those two cases were applicable, the award of the arbitrator companyld number be interfered with. On this ground also the decisions in Engineers-De-Space-Age and Madnani are inapplicable Inasmuch as we have already expressed similar view as mentioned above and companyveyed our inability to apply the reasoning in Madnani Construction Corporation Private Limited supra , we fully endorse the view expressed in Sree Kamatchi Amman Constructions supra . In the light of the above discussion, following companyclusion emerge Reliance based on the ratio in Board of Trustees for the Port of Calcutta supra is unacceptable since the said view has been overruled in Sayeed Ahmed and Company supra and insofar as the ratio in Madnani Construction Corporation Private Limited supra which is also unacceptable for the reasons mentioned in the earlier paras, we reject the stand taken by the companynsel for the respondent. On the other hand, we fully accept the stand of the Union of India as rightly projected by Mr. A.S. Chandhiok, learned ASG. We reiterate that where the parties had agreed that numberinterest shall be payable, the arbitrator cannot award interest for the amounts payable to the companytractor under the companytract. Where the agreement between the parties does number prohibit grant of interest and where a party claims interest and the said dispute is referred to the arbitrator, he shall have the power to award interest pendent elite. As observed by the Constitution Bench in G.C. Roys case supra , in such a case, it must be presumed that interest was an implied term of the agreement between the parties. However, this does number mean that in every case, the arbitrator should necessarily award interest pendente lite. In the subsequent decision of the Constitution Bench, i.e., N.C. Budharajs case supra , it has been reiterated that in the absence of any specific stipulation or prohibition in the companytract to claim or grant any such interest, the arbitrator is free to award interest. In the light of the above principle and in view of the specific prohibition of companytract companytained in Clause 1.15, the arbitrator ceases to have the power to grant interest. We also clarify that the Arbitration Act, 1940 does number companytain any specific provision relating to the power of arbitrator to award interest. However, in the Arbitration Conciliation Act, 1996, there is a specific provision with regard to award of interest by the arbitrator.

2003 Supp 3 SCR 275 The Judgment of the Court was delivered by BRIJESH KUMAR, J. The Central Board of Secondary Education for short the Board , felt aggrieved by the decision of Madhya Pradesh High Court rendered on 2.7.1996 in writ petition No. 426 of 1996, filed by the respondents No. 1 and 2, whereby directing the Board to declare the result of the exemination undertaken by the respondent No. 1 for class X in the year 1996, hence the present appeal. In the impugned judgment it was also directed that a fresh marks-sheet be also issued to her, since the result had been declared earlier only provisionally. The grievance of the Board that the respondent No. 1 was number eligible to appear in the high school examination, was number accepted. The brief facts of the case are that the respondent No. 1 was a student of St. Pauls School, Morar, Gwalior, affiliated to the Central Board of Secondary Education, New Delhi. She filled up form for high school examination but the same was withheld by the school authorities on the ground that she had number cleared her class IX examination. It gave rise to filing of a writ petition No. 484/95 by respondents number. 1 and 2, the candidate and her father. On 4.4.95 an interim order was passed by the High Court to the following effect - 4.4.95 ORDER Notice of admission was given to the respondents. There is a report that respondents have refused the numberice. Let a fresh numberice be sent by way of registered post also and service be effected by affixation. The Notices be issued for 18th April, 1995. In para 11 of the Petition, it has been stated that the Petitioner was initially promoted but later on she was declared to have failed. In this view of the matter, a direction is given to the respondents to permit the petitioner No. 2 to join Class X. This would be subject to the decision of this petition. C. Today. Sd - S. Doabia Judge Later yet another interim order was granted on 19.9.1995 in Writ Petition No. 484 of 1995 to the following effect - 19.9.1995 ORDER Petitioner No. 2 be permitted to take part in the examination. To companye up on the date already fixed. Sd - T.S. Doabia Judge The Writ Petition No. 484/95 was thereafter disposed of by order dated 5.12.95, which reads as under - Heard. This petition is rendered infructuous as the admission form for appearing in examination of the petitioner has since been sent to the Central Board of Secondary Education, Delhi. This is class X examination. As per the respondents the Petitioner would be permitted to take part in this examination. No further direction is required. Disposed of as such. Sd -Judge It, however, appears that another writ petition No. 426 of 1996 was filed by respondents No. 1 and 2 with a prayer that a telegram sent by the Regional Officer of the Board, Ajmer, Rajasthan number permitting her to appear in the examination may be quashed and the petitioner No. 1 may be allowed to appear in the examination of the Board which was to start on 6.3.1996. On 1.3.1996 the High Court passed the following interim order - In view of these circumstances, it is directed that petitioner should be permitted to appear in the examination at the roll No. 1118864 as mentioned in the telegram, in all papers of Class Xth. The result, however, would be subject to the decision of this petition, Certified companyy today, on payment. Judge Thereafter the next order was passed on 17.5.1996 saying Let the result of the petitioner be declared. List in the last week of June, 1996. Ultimately, the petition was finally disposed of by order dated 2.7.1996. The High Court in its judgment refers to the plea raised by the appellant to the effect that for taking up examination for Class X a student must companyplete a regular companyrse of studies for Class IX from an institution affiliated to the Board. Since the respondent No. 1 had number passed her class IX examination she was number eligible for appearing in the examination in Class X. Thereafter bye-law 10.2 was quoted in the judgment, which provision, according to the High Court, was very material. It is as follows 10.2 A candidate for All India Delhi Secondary School Examination should have - a passed the Middle School Examination Class VIII of a Board or of an affiliated recognized scholl at least two years earlier than the year in which he would take secondary school Class X examination b secured a grade higher than grade E in each of the subject of internal assessment at the Examination refferred to at a above and c passed the third language as per requirement laid down in the scheme of studies. On the basis of the above provision, the Court found that the respondent No. 1 possessed minimum educational qualification of middle school examination Class VIII so as to be entitled for appearing in the class X examination. Hence direction was issued to finally declare the result of respondent No. 1 and to issue a fresh marks-sheet. Learned companynsel for the appellant has, however, down our attention to provision companytained in byelaw 7.3 of the bye-laws of the Board which reads as under - 7.3. Admission to Class X in a school shall be open only to such a student who - a has companypleted a regular companyrse of studies for class IX, and b has passed class IX examination from an institution affiliated to this Board or to any recognized boardor to any recognize board or is recognized by the Education Department of the govt. or the State U.T. in which such an institution is located. xxx xxxx Thereafter bye-law number 16 is referred, relating to private candidates. It is as follows - Private Candidates Definition For the purposes of the bye-laws companytained in this chapter and the chapter 5, unless there is something repugnant in the subject or companytext a Private Candidate means a person who is number a Regular but, under the provisions of the bye-laws, is allowed to undertake and or appear in the All India Delhi Senior School Certificate Examination or All India Delhi Secondary School Examination of the Board. xxxx xxxxx xxxxx We find that bye-laws number. 21 and 22 are also relevant which are quoted below - Person eligible to appear as a Private Candidate for All India Secondary School Examination - A candidate who had failed at the All India Secondary School Examination of the Board, will be eligible to reappear at the subsequent examination as a private candidate in the syllabus and text books as prescribed for the examination of the year in which he will reappear. Teachers serving in institutions affiliated to the Board, xxxx xxxx xxxx 22 v Those regular Candidates who have failed to obtain promotion to class X of the school affiliated to the Board or any other recognized Board shall number be admitted to the Delhi Secondary Examination of the Board as private candidates. The definite case taken on behalf of the appellant before the High Court has been that the respondent number 1 had failed in her class IX examination for the year 1994-95. In this companytext the prayer made by the respondent number 1 in her writ petition number 484 of 1995, may be referred to, which reads as follows to quash the result declared by the Respondent No. 3 in so far as respondent No. 1 is companycerned and Respondent No. 1 be declared as promoted Respondent No. 3 be directed to take supplementary examination in Hindi and English subjects whithin a period of seven days with a further direction to the respondent number 3 to give respondent number 1 some time to prepare herself for the supplementary examination. It is thus clear that, according to the respondent number 1 herself, she was declared failed in her examination for class IX. The High Court, while finally deciding the writ petition number 426 of 1996 by order dated 2.7.1996 companyveniently overlooked to take numbere of the provision companytained in bye-law number 7.3, companytents of which have been indicated above. There was only a mention of clause 7.3 of bye-laws of the Board but numberhing beyond that was indicated or observed in the judgment, as to why it would number be applicable to the case. Aftger quoting bye-law 10.2 the High Court held that the respondent No. 1 was eligible to appear in the high-school examination since there was a gap of two years in between her two examinations viz. class VIII and class X. The High Court also did number record any finding in respect of other companyditions as mentioned in bye-law number 10.2, namely, a student must have secured higher than E grade in each subject of internal assessment and has also passed the third language as per requirement laid down in the scheme. The High Court failed to companysider the bye-law 10.2 will number be applicable to the respondent number 1 but it would be bye-law 7.3, which would apply in her case. Therefore, it was necessary that she must have passed class IX as a regular student before she companyld be allowed to undertake examination for class X held by the Board. The position stands further clarified in regard to the private candidates under bye-laws number 16 and 21. The respondent number 1 did number fulfill the companyditions laid for private companydidates and her case would only be companyered by bye-law 7.3 and number by bye-law number 10.2 of the examination bye-laws of the Board as held by the High Court. Despite the position under the bye-laws as indicated above, the High Court finally disposed of the writ petition number 426 of 1996 cursorily holding that since the respondent number 1 had appeared in the examination and her result had been declared provisionally therefore, the Board was directed to declare her result of class X and to issue a fresh marks sheet without any endorsement thereon emphasis supplied . It was companypletely overlooked that by order dated 1.3.1996, it was provided that the respondent number 1 was allowed to appear in examination, subject to the decision of the writ petition. Hence there was numberoccasion to say that since provisional result has been declared therefore, final result should also be declared with a fresh marks sheet without any endorsement thereon. The validity of the examination undertaken by respondent number 1 should have been properly scrutinized in the light of all the relevant examination byelaws of the Board. We also find that in writ petition number 484 of 1995, interim orders were granted permitting the filling up of the form for high-school examination. But while ultimately disposing of the petition, it was held that the writ petition had become infructuous since the examination form of the respondent number 1 had been forwarded to the Central Board of Secondary Education, Delhi and it is attributed to the respondents in the petition, that as per the respondents, the candidate would be permitted to take part in the examination. It was, therefore, thought that numberfurther direction was required and the matter was disposed of as infructuous. Merely forwarding of an examination form by an institution affiliated to the examining body is numbersurety that the examining body would necessarily permit the candidate to undertake the examination. The forms after being sent are scrutinized and checked by the examining body. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the companyrse was over or the result has been declared, the matter deserves to be companysidered sympathetically. It results into very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and companycessions, against the legal provisions. A few decisions on the point may be perused. In C.B.S.E. and Anr. v. P. Sunil Kumar and Ors., 1988 5 SCC page 377, the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were number affiliated to the Board, hence the students were number entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the Court in companytravention of the rules and regulations of the Board. The High Court companysidering the matter sympathetically had number interfered, but this Court observed thus But to permit students of an unaffiliated institution to appear at the examination companyducted by the Board under orders of the Court and then to companypel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will number be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students The order of the High Court was set aside. Another decision reported in Guru Nanak Dev University v. Parminder Kr. Bansal, 1993 4 SCC 401, a three judge bench decision, was relied upon in the case of Sunil Kumar supra . A passage from the above numbered decision was also quoted therein which reads as follows We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does numberservice to anyone. From the series of orders that keep companying before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious companyplications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates that by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The companyrts should number embarrass academic authorities by themselves taking over their functions. Yet another decision referred to is reported in A. P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr. Etc. Etc., 1986 2 SCC 667, again a three judge bench decision. It was observed in this case We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the companyrt to disobey the laws. The above referred matter relates to the admission and examination of B.B.S. companyrses. In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as companypared to the decision cited above. The student, namely, respondent number 1 had failed to clear her class IX examination which was a necessary requirement as provided under the bye-laws of the Board so as to be entitled to appear in the class X examination companyducted by the Board. Despite numberice, numberone has put in appearance on behalf of the respondents number

CIVIL APPELLATE JURISDICTION Civil Appeal No. 513 of 1961. Appeal by special leave from the judgment and order dated June 23, 1960, of the Kerala High Court in Second Appeal No. 103 1957. T. Desai and V.A. Seyid Muhmmad, for the appellants. Sardar Bahadur, for the respondents. August 23, 1963. The Judgment of the Court was delivered by HIDAYATULLAH J--This appeal by special leave by defendants Nos. 1 to 3 raises an important question under the Muhammadan Law, which may be stated thus Is a gift by a husband to his minor wife and accepted on her behalf by her mother valid P It has been held by the High Court and the companyrts below that in Muhammadan Law such a gift is invalid. The facts leading up to this question may number be stated. One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed. Mammotty died on May 3, 1946 without an issue. Seinaba also died soon afterwards on February 25, 1947, without leaving an issue. At the time of the gift Seinaba was 15 years 9 months old. It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother-in laws house afterwards. There are companyflicting versions about the nature of the disease and a plea was taken in the case that the gift was made in companytemplation of death and was voidable. This plea need number detain us because the trial Judge and the first Appellate Judge did number accept it. After the death of Seinaba, the present suit was brought by Kunhamu an eider brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as invalid. To the suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each. He also submitted that the first three defendants the appellants were entitled to the remaining 4/16 share as heirs of Seinaba. In other words, Kunhamus companytention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was numberissue, and the remaining 3/4 was divisible between Kunhamu and his two sisters, Kunhamu getting twice as much as each sister, These shares according to him were unaffected by the invalid gift in faVour of Seinaba and accepted on her behalf by her mother. This companytention has been accepted and it has been held in this case in all the three companyrts that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand-father or his executor. As Katheesumma the mother of Seinaba was number a legal guardian of the property of Seinaba it was companytended by the plaintiff that the gift was void. It was admitted on behalf of the plaintiff that Mammotty companyld have himself taken over possession of the property as the guardian of his minor wife but it was submitted that such was number the gift actually made. These companytentions raise the question which we have set out earlier in this Judgment. Mr. S.T. Desai on. behalf of the appellants companytends that neither express acceptance number transfer of possession is necessary for the companypletion of a gift, when the donor is himself the guardian or the de-facto guardian or quasiguardian provided there is a real and bona fide intention on the donors part to transfer the ownership of the subject matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention. He further companytends that numberdelivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested. According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife. Lastly he submits that in any view of the matter when a husband makes a gift to a minor wife and there is numberlegal guardian of property in existence, the gift can be companypleted by delivery of the property to and acceptance by any person in whose companytrol the minor is at the time. If there is numbersuch person one can be chosen and appointed by the donor to whom possession can be made over to manifest the intention of departing from the property gifted. Mr. Desai seeks to justify these submissions on authority as well as by deductions from analogous principles of Muhammadan Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian. The other side companytends that there is numberrule of Muhammadan Law which permits such acceptance and that the decision of the High Court is right. A gift Hiba is the companyferring of a right of property in something specific without an exchange ewaz . The word Hiba literally means the donation of a thing from which the donee may derive a benefit. The transfer must be immediate and companyplete tamlik-ul-ain for the most essential ingredient of Hiba is the declaration I have given. Since Muhammadan Law views the law of gifts as a part of the law of companytract there must be a tender ijab and an acceptance qabul and delivery of possession qabza . There is, however, numberconsideration and this fact companypled with the necessity to transfer possession immediately distinguishes gifts from sales. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed numberquestion in this behalf can arise. In so far as Mammotty was companycerned there was delivery of possession and the deed also records this fact. Possession was number delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty companyld have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living Durrul-Mukhtar, Vol. 3 p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman . But Mammotty did number companyplete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is companypleted ordinarily by the acceptance of the guardian of the property of the minor Wilayat-ul-Mal. A mother can exercise guardianship of the person of a minor daughter Hizanat till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un- 36--2 S.C. India/64 married and that of the husband if she is married and has gone to her husband. Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is companysidered unfit. The mother was thus number the guardian of the person of Seinaba. Seinabas mother was also number a guardian of the property of Seinaba. Mahammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage Wilayat-ulNikah in the case of minor females. Guardians of the property are father and grandfather but they include also executors Wasi of these two and even executors of the executors and finally the Kazi and the Kazis executor. None of these were in existence except perhaps the Civil Court which has taken the place of the Kazi. Now Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted Kabz-ul- Kamil especially of immovable property. The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie Dig. p. 508 quoting from the Inayah refers to a Hadis of the Prophet--a gift is number valid unless possessed. In the Hedaya it is stated--Gifts are rendered valid by tender, acceptance and seisin p. 482 and in the Vikayah gifts are perfected by companyplete seisin Macnaghten 202 . The question is whether possession can be given to the wifes mother when the gift is from the husband to his minor wife and when the minors father and fathers father are number alive and there is numberexecutor of the one or the other. Is it absolutely necessary that possession of the property must be given to a guardian specially to be appointed by the Civil Court ? The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is numbertext prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy Rai fi l qiyas can be made. The Hanafi law as given in the Kafaya recognises the legality of certain gifts which custom urf has accepted. This is because in deciding questions which are number companyered by precedent Hanafi jurisprudence attaches to transfer possession immediately distinguishes gifts from sales. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed numberquestion in this behalf can arise. In so far as Mammotty was companycerned there was delivery of possession and the deed also records this fact. Possession was number delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty companyld have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living Durrul-Mukhtar, Vol. 3 p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman . But Mammotty did number companyplete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is companypleted ordinarily by the acceptance of the guardian of the property of the minor Wilayat-ul-Mal. A mother can exercise guardianship of the person of a minor daughter Hizanat till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un- 36--2 S.C. India/64 based on istehsan liberal companystruction lit. producing symmetry and istislah public policy . The Prophet himself approved of Muizz a Governor of a province who was newly appointed who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed there should be numberrule against it and it must flow naturally from other established rules and must be based on justice, equity and good companyscience and should number be haram forbidden , or Makruh reprobated . It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was number handed over to one of the stated guardians of the property of the minor. We shall number refer to some of these cases. The rules on the subject may first be recapitulated. It is only actual or companystructive possession that companypletes the gift and registration does number cure the defect number is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. If the property is with the donor he must depart from it and the donee must enter upon possession. The strict view was that the donor must number leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child Macnaghten page 51 principles 8 9 . Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife. In Mohammad Sadiq Ali Khan v. Fakhr Jahan 1 , it was held that even mutation of names is number necessary if the deed declares that possession is delivered and the deed is handed to the wife. A similar extension took place in cases of gifts by a guardian to his minor ward Wilson Digest of Anglo-Muhammadan Law 6th Edn. p. 328 . In the case of a gift to an orphan minor the ,rule was relaxed in this way If a fatherless child be under charge of his mother, 1 1932 59 I.A. I. and she take possession of a gift made to him, it is valid The same rule also holds with respect to a stranger who has charge of the orphan. Hedaya p. 484. See also Baillie p. 539 Lahore Edn. In the case of the absence of the guardian Gheebuti-Moonqutaa the companymentators agree that in a gift by the mother her possession after gift does number render it invalid. Thus also brother and paternal uncle in the absence of the father are included in the list of persons who can take possession on behalf of a minor who is in their charge Durrul Mukhtar Vol. 4 p. 512 Cairo Edn. . In Radd-ul-Mukhtar it is said It is laid down in the Barjindi There is a difference of opinion, where possession has been taken by one, who has it the child in his charge when the father is present. It is said, it is number valid and the companyrect opinionis that it is valid. Vol. 4, C.513 Cairo Edn. In the Bahr-al-Raiq Vol. 7 p. 314 Edn. Cairo The rule is number restricted to mother and stranger but means that every relation excepting the father, the grand-father and their executors is like the mother. The gift becomes companyplete by their taking possession if the infant is in their charge otherwise number. In Fatawai Kazikhan Vol. 4, p. 289 Lucknow Edn. , the passage quoted above from Radd-ul- Mukhtar is to be found and the same passage is also to be found in Fatawai Alamgiri Vol. 4 p. 548 Cairo Edn. All these passages can be seen in the lectures on Moslem Legal Institutions by Dr. Abdullah al-Mamun Suhrawardy. The rule about possession is relaxed in certain circumstances of which the following passage from the Hedaya p. 484 mentions some It is lawful for a husband to take possession of any thing given to his wife, being an infant, provided she has been sent from her fathers house to his and this although the father be present, because he is held, by implication, to have resigned the management of her companycerns to the husband. It is otherwise where she has number been sent from her fathers house, because then the father is number held to have resigned the management of her companycerns. It is also otherwise with-respect to a mother or any others having charge of her because they are number entitled to possess themselves ofa gift in her behalf, unless the father be dead, or absent, and his place of residence unknown for their power is in virtue of necessity, and number from any supposed authority and this necessity cannot exist whilst the father is present. Macnaghten quotes the same rule at p. 225 and at page 230 is given a list of other writers who have subscribed to these liberal views. The above views have also been incorporated in their text books by the modern writers on Muhammadan Law. See Mullas Principles of Mahomedan Law 14th Edn. pp. 139, 142, 144 and 146, Tyabjis Muhammadan Law 3rd Edn. pp. 430-435, ss. 397- 400, Amir Alis Mahommedan Law Vol. 1, pp. 130-131 . The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab v. Papiah and ors. 1 it was held that gift did number necessarily fail merely because possession was number handed over to the minors father or guardian and the donor companyld numberinate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan law if gifts, though strict, companyld number be taken to be made up of unmeaning technicalities. A similar view was expressed in Nauab Ian v. Safiur Rehman 2 . These cases were followed recently in Munni Bai and anr. v. Abdul Gani 3 , where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to companyplete it by some significant overt act. See also Mt. Fatma v. Mt. Autun 4 , Mst. Azizi and anr. v. Sona Mir 5 and Mam ors. Kunhdi ors. 6 . A.I.R. 1915 Mad. 972. A.I.R. 1918 Cal. 786. A.I.R. 1959 M.P. 225. A.I.R. 1944 Sind 195, A.I.R. 1962 J. K. 4. 6 1962 K.L.J 351. In Md. Abdul Ghani v. Mt. Fakhr Jahan 1 , it was held by the Judicial Committee as follows In companysidering what is the Mohammaden Law on the subject of gift intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were number in the companytemplation of any one any Tran sfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it companyld number have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and hadbeen accepted by the donee as a gift. Later in Mahamad Sadiq Ali Khan v. Fakhr Jahan Begum 2 , it was held by the Privy Council that at least between husband and wife Muhammadan law did number require an actual vacation by the husband and an actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. These cases show that the strict rule of Muhammadan law about giving possession to one of the stated guardians of the property of the minor is number a companydition of its validity in certain cases. One such case is gift by the husband to his wife, and another, where there is gift to a minor who has numberguardian of the property in existence. In such cases the gift through the mother is a valid gift. The respondent relied upon two cases reported in Suna Mia v. S. A. S. Pillai 3 where gift to a minor through the mother was companysidered invalid and Musa Miya and 1 1922 491.A. 195 at 209. 2 1932 591.A.I. 3 1932 11 Rang. 109. anr. v. Kadar Bux 1 , where a gift by a grandfather to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and companypetent. They arc distinguishable from those cases in which there is numberguardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the companypletion of the gift for his benefit is the sole companysideration. As we have shown above there is good authority for these propositions in the ancient and modern books of Muhammadan law and in decided cases of undoubted authority. In our judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though number in marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother-in-law and accepted by her on behalf of the minor. There can be numberquestion that there was a companyplete intention to divest ownership on the part of Mammotty and to transfer the property to the donee.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1754 of 1974. Appeal by special leave from the judgment and order dated the 9-10-1972 of the Allahabad High Court of Judicature at Allahabad in Civil Misc. Writ No. 2830 of 1970 V. Patel, B. P. Singh, for the appellant P. Goyal and Shreepal Singh, for respondents 2-3. N. Dikshit and O. P. Rana for respondents 1 4. The Judgment of the Court was delivered by BEG, J. The appellant before us, by grant of special leave to appeal against the judgment of a Division Bench of the Allahabad High Court, challenges the validity of a- Housing Scheme, first numberified on r 13th March, 1965, under Section 36 of the U.P. Town Improvement Act No. VIII of 1919 hereinafter referred to as the Act , and then finally sanctioned, under Section 32 1 of the U.P. Awas Evam Vikas Parishad Adhiniyam U.P. Act I of 1966 hereinafter referred to as the Adhiniyam , and published on 3rd May, 1969 in the U.P. Gazette. Learned Counsel for the petitioner has invited our attention to the five objections put forward and rejected by the Division Bench to the acquisition for purposes of the scheme. Out of these, he has abandoned two. He companyfines his objections to three which are as follows Firstly, as the numberification under section 8 of the Act of 1919, indicating the companymencement of the term of the office of the Ist Trustees took place only on 21st February, 1966, after the Act of 1919 had been repealed, the Trustees, who had been appointed by a numberification dated 21st March, 1963, under Section 4 of the Act of 1919, companyld number have framed any scheme because the Trust itself was never properly companystituted. Secondly, even if the first objection be number sustainable, the scheme, as sanctioned by the Trust, number being the same as the one which was first numberified under the Act of 1919, companyld number be companytinued under the provisions of Section 97 of the Adhiniyam. Thirdly, the numberification made under Section 32 1 of the Adhiniyam of 1966, with regard to the Rustampur- Tiwaripur Vikas Yojna No. 5, which was to be equated with a numberification under Section 6 of the Land Acquisition Act,. 1894, was invalid, because it was number published within two years after the companymencement of the Land Acquisition Amendment and Validation ordinance, 1967, as required by Section 4 2 of the Land Acquisition Amendment and Cr - Validation Act of 1967. With regard to the 1 st objection the relevant provisions placed before us are Sections 4 and 8 of the Act of 1919. They are Constitution of Trust.- 1 Trust shall companysist of the following Trustees, namely- a a Chairman b the Chairman of the municipal board c repealed. d seven other persons in Kanpur and five other persons other places. The Chairman and the persons referred to in clause d of sub-section 1 , shall be appointed by the State Government by numberification. The Chairman of the Municipal Board shall be a Trustee ex-officio. 4 5 repealed. Of the persons referred to in clause d of subsection 1 number more than one shall be a person in the service of the Government. Commencement of term of office of first Trustees.- The term of office of the first Trustees shall companymence on such date as shall be numberified in this behalf by the State Government. A person ceasing to be a member by reason of the expiry of his term of office shall, if otherwise qualified, be eligible for renomination. Section 1, sub.s. 3 says 1 3 This section and section 66 shall companye into force at once. The State Government may, by numberification / direct that the rest of the Act shall companye into operation in the whole or any part of any municipality, and in any area adjacent thereto, on such date as may be specified in such numberification. It is number disputed that the relevant numberifications had been issued bringing the whole Act into operation before the numberification of 21st March, 1963, with which we are companycerned here, was published r showing that the Governor of P. was pleased to appoint the District Magistrate of Gorakhpur as the Chairman of the Gorakhpur Improvement Trust and others as Trustees of it. Chapter II of the Act 1919 dealing with companystitution of trusts, begins with Section 3, which reads as follows - Creation and incorporation of Trust.-The duty of carrying out the provisions of this Act in any local area shall, subject to the companyditions and limitations hereinafter companytained, be vested in a board to be called. The name of town Improvement Trust, hereinafter called the Trust, and every such board shall be a body companyporate and have perpetual succession and a companymon seal, and shall by the said name sue and be sued. We have already set out Section 4 above. Section S deals with resignation of trustees. Sections 6 and 7 are also relevant. They read as follows Term of office of Chairman.-The term of office of the of the Chairman shall ordinarily be three years, provided that he may be removed from office by the State Government at any time Term of office of other Trustees.-Subject to the fore going provisions of the term of office of every Trustee appointed under clause d of subsection 1 of Section 4 shall be three years. Section 9 deals with remuneration of the Chairman, Section 10 with removal of trustees, Section 11 with the disabilities of trustees removed under Section 10, and section 12 with the filling up of casual vacancies. Chapter III deals with proceedings of the trust and its Committees. Chapter IV deals with improvement schemes. Chapter VI deals with acquisition and disposal of land. Chapter VII deals with finance. Chapter VIII with framing of rules, and Chapter IX with procedures and penalties. Chapter X, which is the last chapter, . deals with certain supplementary provisions among which is Section 100 providing as follows Validation of acts and proceedings.- 1 No act done or proceeding taken under this Act shall be questioned on the ground merely of- a the existence of any vacancy in, or any defect in the companystitution, of the trust or any Committee or b any person having ceased to be a trustee or c any trustee, or any person associated with the Trust under Section 14 or any other member of a Committee appointed under this Act having voted or taken any part in any proceeding in companytravention of Section 117 or d the failure to serve a numberice on any person, where numbersubstantial injustice has resulted from such failure or e any omission, defect or irregularity number affecting the merits of the case. Every meeting of the Trust, the minutes of the proceeding of which have been duly signed as prescribed in clause g of sub-section 1 of Section 13, shall be taken to have been duly companyvened and to be free from all defect and irregularity. It is number denied that the Improvement Trust of Gorakhpur had been actually working under the above mentioned provisions of the Act of 1919. We think that Section 100 of the Act of 1919, in the companytext of the whole Act, companypletely refutes the argument based upon a specious distinction between appointment of members of the trust and the Constitution of the Trust, and upon an unwarranted companydition sought to be imposed upon the companypetence of members of the Trust to act said to be embedded in Section 8 which was, we think never intended to serve such a purpose. Section 4, dealing with the Constitution of the Trust, indicates that the appointment of the Chairman and members companypletes the Constitution of the trust. A trust, duly incorporated by the terms of a statute, armed with all the powers vested in it by the provisions, mentioned above, of a statute which has become operative, cannot be lacking in power or companypetence to act at all simply because Section 8, meant to numberify the companymencement of office of the first trustees only under the Act, has number been companyplied with simultaneously with or soon after the appointment of the first trustees. Section 8 is the last of the three Sections which deal with duration of terms of offices of the Chairman and the trustees. It is companyfined to the companymencement of the term by which is meant the duration of the period of office of the first trustees so that subsequent trustees may properly take over after the period of office of the first trustees terminates. The whole object seemed to be only to deter mine the date of companymencement of their term in order to fix the date of its expiry so as to enable fresh appointments to be made in time. Assuming that the Gorakhpur improvement Trust was first companystituted in 1963, there is numberprovision indicating that the companystitution of the trust was number companyplete as soon as it was declared by statute and a Chairman and trustees took charge of their offices by reason of their appointment as trustees. This had been done by the numberification under Section 4 2 . Therefore, the need for a numberification under Section 8 does number seem to have been felt until the time when the expiry of the fixed term of office of the first trustees drew near. This explains why the subsequent numberification, which was really a companyollary of a numberification under Section 4 2 , took place so late when the three years period of their offices was about to companye to an end. A numberification under Section 8 was probably quite unnecessary by reason of Sections 96 and 97 of Adhiniyam of 1966 which repealed U.P. Act No. VIII of 1919 and dissolved the trust on and from the date on which the Adhiniyam came into force in an area. However, even assuming that the date of the companying into force of the Adhiniyam, and, therefore, the repeal of the Act for Gorakhpur was subsequent to 21st February, 1966, the absence of a numberification under Section 8 companyld number, in our opinion, invalidate any proceeding of the Trust. It was companyceded that a numberification under Section 8 companyld have been companybined with the numberification under Section 4 2 . Even if, strictly speaking, a numberification under Section 8 should have followed soon after the numberification under Section 4 2 of the Act of 1919, yet, Section 100 prevents any such technical irregularity from invalidating any proceeding of the trust, including the framing and implementation of the Scheme before us. Coming to the second objection, we find that the only ground upon which it is pressed is that the preliminary numberification, of which numbercopy has been placed before us, was said to companytain what is described as a housing and accommodation scheme, falling under Section 24 g read with Section 31 of the Act of 1919, whereas, the finally sanctioned scheme, called Rustampur Tiwaripur Vikas Yojna No. 5 KP. which is translated by learned Counsel for the appellant as a Land Development Scheme is alleged to fall under Section 24 f read with Section 30 of the Act of 1919. This argument seems based on mere speculation about the changed character of the two supposedly separate and different schemes. The scheme had been referred to by the same name in so far as locality, to which the scheme relates, is companycerned. The plots involved are admitted to be the same both in the initial and final numberifications. It is immaterial that Section 24 of the Act of 1919 lists eight types of Schemes. We have number been shown how any feature of the originally framed scheme, apart from an acquisition by it of a new Hindi appellation, was altered so that it companyld number be companytinued under Section 97 3 of the Adhiniyam of 1966 which lays down 97 3 Every scheme and all proceedings relating thereto under the U.P. Town Improvement Act, 1919 U.P. Act VIII of 1919 , including proceedings for the levy. assessment or recovery of betterment tax, pending on the appointed day shall stand transferred to the Board, which shall proceed further with the scheme or with the execution thereof or with the levy, assessment or recovery of betterment fee in companynection therewith, from, the stage at which it was transferred to it, in accordance with the companyresponding provisions of this Act Provided that the Board may, if it thinks fit, recall any step or proceeding already gone through under the said Act and take that step or proceeding afresh under the companyresponding provision of this Act. The third objection appears, at first sight, to be little more substantial than the first two, but, on closer examination, we find it to be also untenable for reasons we number proceed to give. We have already numbericed that the dates of numberifications under Section 36 of the Act of 1919, and under Section 32 1 of the Adhiniyam of 1966 were 13th March, 1965, and 3rd May, 1969, respectively. Section 36 of the Act of 1919 provided Preparation, publication and transmission of numberice as to improvement schemes, and supply of documents to applicants.- 1 When any improvement scheme has been framed, the Trust shall prepare a numberice, stating- a the fact that the scheme has been framed, b the boundaries of the area companyprised in the scheme, and c the place at which particulars of the scheme, a map of the area companyprised in the scheme, and a statement of the land which it is proposed to acquire, may be seen at reasonable hours The Trust shall- a cause the said numberice to be published weekly for three companysecutive weeks in the official Gazette and in a local newspaperor newspapers if any with a statement of the period within which objections will be received, and, b send a companyy of the numberice to the Chairman of the municipal board. The Chairman shall cause companyies of all documents referred to in clause c of subsection 1 to be delivered to any applicant on payment of such fees as may be prescribed by rule under Section 73. Section 56 of the Act of 1919 reads Power to acquire land under the Land Acquisition Act, 1894,-The Trust may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act. 2-L390SCI/76 Section 58 of the Act indicates that the modifications made by the Act, subject to which the procedure of the Land Acquisition Act of 1894 is to be applied to a scheme under the Act, are given in paragraph 2 of the schedule to the Act which lays down Notification under Section 4 and declaration under Section 6 to be replaced by numberifications under Sections 36 and 42 of this Act.- The first publication of a numberice of an improvement Scheme under Section 36 of this Act shall be substituted for and have the same effect as publication in the official Gazette and in the locality, of a numberification under sub-section 1 of Section 4 of the said Act, except where a declaration under Section 4 or Section 6 of the said Act has previously been . made and is still in force. Subject to the provisions of Sections 10 and 11 of this Schedule, the issue of a numberice under subsection 4 of Section 29 in the case of land acquired under that sub-section, and in any other case the publication of a numberification under Section 42 shall be substituted for and have the same effect as a declaration by the State Government under Section 6 of the said Act, unless a declaration under the last mentioned section has previously been made and is still in force. Section 97 of the Adhiniyam, already set out above, applies the companyresponding provisions of the Adhiniyam of 1966 to proceedings begun under the Act of 1919. It is clear, from the provisions set out above, that the Act and the Adhiniyam apply Sections 4 and 6 of the Land Acquisition Act, 1894, to the acquisition for the scheme before us in so far as their effects are companycerned. It is arguable that, if the effectiveness of the numberifications t under Sections 4 and 6 of the Land Acquisition Act is cut down or modified or amended in any way, subsequent to the date of the passing of the Adhiniyam, the amendments may number apply, but the effect of the numberifications, where the Act and the Adhiniyam were enacted, would be all that need be companysidered. It is true that the numberices are procedural matters, but they affect substantive rights as well. The date of numberification under Section 4 affects the amount of companypensation which may be determined and a numberification under Section 6 operates as companyclusive evidence that the land is needed for a public purpose and enables the appropriate Government to proceed to acquire the land. Nevertheless, an acquisition under Section 56 of the repealed Act as well as under Section 55 of the Adhiniyam of 1966 takes place expressly under the Land Acquisition Act of 1894. This may well mean that, if the machinery of acquisition is modified in some respect by an amendment, the amended machinery alone can apply. The High Court had number decided this question. We also think that it is number necessary for us to decide this question as it has number been argued, on behalf of the respondent, that the amendment of the Land Acquisition Act, 1967, would number apply here. We, therefore, proceed on the assumption that the Land Acquisition Act, as amended in 1967, was applicable here. Section 4 2 of the Land Acquisition Amendment and Validation Act 1967, lays down 4 2 Notwithstanding anything companytained in clause b of sub-section 1 , numberdeclaration under section 6 of the principal Act in respect of any land which has been numberified before the companymencement of the Land Acquisition Amendment Validation ordinance, 1967, sub-section 1 of Section 4 of the Principal Act, shall be made after expiry of two years from the companymencement of the said ordinance. In the case before us, the first numberification under Section 36 of the Act, having been equated with the preliminary numberification under Section 4 of the Land Acquisition Act and published on 13th March, 1965, the declaration under Section 6 had to be made within two years of the companying into force of the ordinance on 20th January, 1967. Neither the declaration number the actual numberification have been placed before us. Nevertheless, the companytention on behalf of the appellant is that, as the numberification under Section 32 1. of the Adhiniyam took place on 3rd May, 1969, numberdeclaration under Section 6 of the Land Acquisition Act companyld be made on this date, the last date for such declaration being 19th January, 1969. No doubt both sides are agreed that, as the judgment of the High Court reveals, the date of the numberification under Section 32 1 of the Adhiniyam is 3rd May, 1969. We, however, think that the appellants companytention before us ignores the very apparent distinction made in the provisions of Section 6 of the Land Acquisition Act between a declaration and its numberification. Section 6 of the Land Acquisition Act reads as follows 6 1 Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after companysidering the report, if any, made under Section SA, sub-section 2 , that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time . in respect of different parcels of any land companyered by the same numberification under Section 4, sub-section 1 , irrespective of whether one report or different reports has or have been made wherever required under Section SA, sub-section 2 Provided that numberdeclaration in respect of any particular land companyered by a numberification under Section 4, sub-section 1 , published after the companymencement of the Land Acquisition Amendment and Validation ordinance, 1967, shall be made after the expiry of three years from the date of such publication. Provided further that numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund companytrolled or managed by a local authority. Every declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. The said declaration shall be companyclusive evidence that the land is needed for a public purpose or for a Company, as the case may be and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing It is clear from the provisions set out above that the object of the numberification under Section 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties companycerned are heard, that the land under companysideration is really needed for a public purpose and that the declaration is to operate as companyclusive evidence to show that this is so. The companyclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed. The numberification which takes place under Section 6 2 , set out above, follows and serves only as evidence of the declaration. That the declaration mentioned in Section 6 1 ,, set out above, differs from its numberification is shown by the fact that it has to be signed by a Secretary or other officer duly authorized. The declaration is in the form of an order. The numberification is its publication and proof of its existence. It has been shown, in the case before us that the deemed numberification under Section 6 took place about three and a half months after the expiry of two years from the companymencement of the ordinance of 1967. But, it is number argue on behalf of the appellant that the declaration under Section 6 was similarly delayed. Presumably, it was within time. A look at the amendment introduced by the Section 4 2 of the Land Acquisition Amendment and Validation Act, 1967, shows that it is the declaration which has to take place within two years of the expiry of the companymencement of the ordinance which came into force on 20th January, 1967. In fact, Section 4 2 of the Amendment Act of 1967, set out above, itself makes a distinction between a declaration under Section 6 and its numberification under Section 4 of the principal Act. It does number say that numbernotification under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is companyfined to declarations made beyond the specified period. If the case of the appellant companyld be that numberdeclaration was made within the prescribed time, it was his duty to prove it. He has number discharged that onus. As indicated by the Division Bench of the Allahabad High Court, the amendment of 1967, was the result of a decision of this Court in the State of Madhya Pradesh Ors. Vishnu Prasad Sharma Ors. 1 holding successive numberifications, under Section 6, with excessive intervening delay between a numberification under Section 4 2 and a declaration under Section 6, keeping the owner or other person entitled to companypensation in suspense all the time, to be illegal. It may be that, if an unreasonable delay between a declaration and its numberification is shown to exist, it may raise a suspicion about the existence of the declaration itself or about the bona fides of acquisition proceedings. This, however, is number the position in the case before us. Neither the existence number the bona fides of the declaration have been questioned. It has number been either asserted or shown, as already mentioned, that numberdeclaration was made with in the period of time fixed for it.

The appellant was tried by the learned Sessions Judge, Manjeri Division at Kozhikode, for causing the death of one Karingodan Muhammad alias Bappu by stabbing him with a knife on January 23, 1971. He was found guilty and companyvicted under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life. The appellant challenged this companyviction and sentence before the Kerala High Court in Criminal Appeal No. 206 of 1971. The State tiled criminal Revision Petition. No. 380 of 1971 for enhancement of the sentence. The High Court by its judgment and order dated 12-10-1971 companyfirmed the appellants companyviction. Regarding the sentence, the High Court allowed the Criminal Revision Petition filed by the State and enhanced the sentence to one of death. This Court, by its order dated 19-4-1972 granted special leave, limited to the question whether the High Court was justified in interfering with the discretion exercised by the Trial Court in imposing the lesser penalty. As the only question is regarding the enhancement of the sentence, we have examined the judgment of the High Court under appeal in order to discover the special reasons, which induced the learned Judges to differ from the opinion of the Trial Court about the appropriate sentence to be imposed upon the appellant. According to the prosecution, when Bappu, in the companypany of P. W. 1. was walking along the road on the evening of January 23, 1971, the appellant who was staying in a room near the road, suddenly came out armed with a knife and inflicted a deep injury on the left side of the chest of Bappu. Bappu fell down and died on his way to the hospital. The post-mortem on the dead body showed that Bappu had sustained on the left side of his chest a deep injury, 2 x 1 x 5. The plea of the accused was one of companyplete denial. The evidence of P. Ws. 1, 2, 4, 5 and 11 regarding the incidence has been accepted by both the Courts. From the evidence of P. Ws. 5 and 6 it appeared that, earlier in the day, there was a quarrel between the deceased and the brother of the appellant, who were both working in certain transport services. The learned Sessions Judge has taken into account the circumstance on the assumption that the accused must have known about this incident when he attacked the deceased the same evening. But it is number categorically found by the learned Sessions Judge that the appellant was aware of the quarrel that took place between the deceased and his brother. The learned Sessions Judge has found that the weapon used by the appellant was a deadly one and that when he stabbed the deceased, the accused had the intention to cause the death of Bappu and that he had also the knowledge that the injury was sufficient to cause the death of a person. The further finding is that there was numbercause for the appellant causing this injury on Bappu as a result of which the latter died. When companysidering the question of sentence, the learned Sessions Judge holds that the evidence in the case establishes that the appellant fell upon the deceased when the latter was walking along the road. The Court further observes that the accused must have been in a disturbed state of mind when he attacked the deceased, as there was numberevidence to show that there was any previous enmity between them. It is further stated by the Court that the appellant, being impulsive, must have attacked the deceased all of a sudden and that the possession of a dagger by the accused cannot be companysidered to be any evidence of pre-meditation and preplanning by him. On this reasoning, the Court held that the interest of justice would be served adequately by the lesser sentence being imposed. The High Court, on the other hand, after agreeing with the findings regarding the guilt of the appellant, recorded by the Trial Court, does number agree that the lesser sentence in the circumstances would meet the ends of justice. It is a view of the High Court that certain important circumstances have been ignored by the learned sessions Judge when awarding the lesser sentence. According to the High Court, there was numberjustification for the appellant suddenly attacking the deceased, who was actually walking along the road unarmed. It is the further view of the High Court that there is numberhing in the evidence to show that any quarrel took place between the appellant and the deceased or that any other unpleasant words were uttered by the deceased, so as to provoke the accused. On the other hand, the accused companying out of the house armed with a fairly big knife, on seeing the deceased and suddenly attacking him, clearly shows that the act of the appellant was deliberate and the stabbing of the deceased with a fairly big knife was brutal. The High Court has further taken into account the fact that the plea of the accused was one of total denial and that there was numberhing in the cross-examination of the prosecution witnesses to show that there was any provocation offered by the deceased at the time when he was attacked. In view of these circumstances, the High Court is of the view that the sentence imposed by the Trial Judge was unduly lenient and manifestly inadequate and that failure to impose the death sentence has resulted in grave miscarriage of justice. On this reasoning, the High Court enhanced the sentence to one of death. Mr. Bisaria, appearing as Amicus Curiae companynsel, urged on behalf of the appellant that the interference by the High Court in the matter of sentence was number justified. Having companysidered the findings regarding the guilt of the appellant and the circumstances under which he stabbed the deceased, as also the reasons given by the two Courts regarding the sentence, we are number inclined to agree with the learned Counsel that in the particular circumstances of this case, the High Court was number justified in enhancing the sentence. It is numberdoubt true that the question of a sentence is a matter of discretion and when that discretion has been properly exercised along accepted judicial lines, an appellate Court should number interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. If a substantial punishment has been given for the offence of which a person is found guilty, after taking due regard to all the relevant circumstances numbermally there should be numberinterference by an appellate Court. On the other hand, interference will be justified when the sentence is manifestly inadequate or unduly lenient in the particular circumstances of a case. The interference will also be justified when the failure to impose a proper sentence may result in miscarriage of justice. See Bed Baj v. State of Uttar Pradesh and the recent judgment in Shiv Govind v. State of Madhya Pradesh . Having due regard to the principles referred to above, we are of the view that the High Court in the case before us, has properly exercised its powers when it enhanced the sentence to one of death. We have already referred to the reasons given by the learned Sessions Judge for imposing the sentence of imprisonment for life as also the reasons given by the High Court for enhancing the sentence to one of death. The High Court has properly taken into account the various relevant circumstances, which have number been either adverted to by the Trial Court or properly appreciated. On the facts, it is established that the appellant suddenly, without any warning, attacked the deceased, who was unarmed and defenseless and caused a very fatal injury on the chest. From the nature of the injuries described in the postmortem certificate, it is also clear that the blow must have been inflicted by the appellant with companysiderable force.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1533 of 1971. Appeal by special leave from the judgment dated September 18, 1971 of the S.D.O. Arbitrator, Muzaffarnagar in Election Petition No. 140 of 1970. AND Civil Appeals Nos. 1797 and 1798 of 1971. , Appeals by special leave from the judgments dated September 18, 1971 of the District Magistrate Registrar, Co-operative Societies, Saharanpur in Appeals Nos. 6 and 8 of 1971 under S. 98 i U.P. Co-Societies Act. AND Special Leave Petition Civil No. 3254 of 1971 From the judgment dated September 16, 1971 of the Registrar, Co-operative Societies District Magistrate Saharanpur in Appeal No. 5 of 1971 under section 98 i h Co-operative Societies Act. P. Goyal and V. C. Parashar, for the appellants in As. Nos. 1533 and 1797 of 1971 and the petitioners in L.P. No. 3268 of 1971 K. Garg, S.C. Agrawal and R. K. Jain, for the appellants , in C.A. No. 1798 of 1971 and the Petitioners in S.L.P. No. 3254 of 1971 B. Agarwal and P. P. Juneja, for respondents Nos. 7, 8 and 1 to 13 in C.A. 1533 of 1971 P. Rana, for respondents Nos. 7 and 12 in C.A. No. 1797 of 1972 and respondent No. 7 in C.A. No. 1798 of 1971 . C. Setalvad, R. K. Garg, S. C. Agarwal and R. K. Jain, for the intervener. The Judgment of the Court was delivered by Ray, J. These three appeals are by special leave. Civil Appeal No. 1533 N of 1971 is by special leave against the judgment dated 18 September, 1971 of the Arbitrator setting aside the election of the Management Committee of the Cooperative Cane Development Union, Shamli in an election petition filed under rule 229 2 of the Co-operative Societies Rules, 1967 framed under the Uttar Pradesh Cooperative Societies Act, 1965. Civil Appeal No. 1797 of 1971 is by special leave against the order of the District Magistrate and Registrar, Co-operative Societies Sharanpur dismissing an appeal filed under section 98 i h of the P. Cooperative Societies Act, 1965 against an order of the Arbitrator under section 70 and 71 of the U.P. Co-operative Societies Act. 1965 setting aside the election of the Sahkari Ganna Vikas Samiti Ltd., Iqbalpur, District Saharanpur. Civil Appeal No. 1798 of 1971 is against the order and judgment dated 16 September, 1971 of the District Magistrate, Saharanpur dismissing an appeal under section 98 i h of the U.P. Co-operative Societies Act, 1965 against the order of the Arbitrator under sections 70 and 71 of the U.P. Co-operative Societies Act, 1965 setting aside the election of ,the Sahkari Ganna Vikas Samiti Ltd., Lhaksar, District Saharanpur. Special Leave Petition Civil No. 3254 of 1971 is for leave to appeal against the order of the Registrar, Co-operative Societies in appeal under section 98 i h against the order of the Arbitrator under sections 70 and 71 of the U.P. Co-operative Societies Act, 1965 setting aside the election of Sahkari Ganna Vikas Samiti, Sarsawa. Special Leave Petition Civil No. 3268 of 1971 is for leave to appeal against the order of the District Authority, Bulandsbahr setting aside the election of the Committee of Management of the Co-operative Cane Development Union Ltd. on an application under rule 229 of the U.P. Co-operative Societies Rules, 1968. These matters raise a companymon question. These Co-operative Societies held their annual general meeting under the provisions of section 32 of the Uttar Pradesh Co-operative Societies Act, 1965 hereinafter called the Act . At the general meetings the members of the Committee of Management of the Society were elected by members of the Society. The, Registrar of the U.P. Co-operative Societies issued a circular dated 5 November, 1969 interpreting rule 409 of the P. Co-operative Societies Rules, 1968 hereinafter called the Rules and laid down the principle that all the members of the general body of the Co-operative Society would exercise their right of vote in filling all the seats of elected Directors. The question in the present appeals is whether the Registrar had power to issue the circular interpreting rule 409 and secondly whether that interpretation is companyrect in terms of the Act and the Rules. The Act deals with Co-operative Societies and inter alia their members and their Committee of Management. The relevant sections for the purpose of present appeals and special leave petitions are sections 20, 29 and 32 of the Act. Section 20 of the Act speaks of vote of members. Under that section, a member of a Co-operative Society shall numberwithstanding the quantum of his interest in the capital of the Society have one vote in the affairs or the Society. There are four provisos to section 20. Proviso a deals with numberinal or associate members who have numberright of vote. Proviso b deals with a companyoperative society, the State Warehousing Corporation or a body companyporate being a member of such society in which case each delegate of such company operative society, State Warehousing Corporation or body companyporate shall have one vote. Proviso c deals with the State Government or the Central Government being a member of such society in which case a numberinee of the State Government or the Central Government shall have one vote. Proviso d deals with a group of members or any class of members partaking in the affairs of the society through a delegate or delegates each delegate having one vote. Section 29 of the Act deals with the Committee of Management. The management of every companyoperative society shall vest in a companymittee of management. The term of the election members of the companymittee of management shall be such as may be provided in the rules and the bye-laws of the society. After the expiry of the term the companyoperative society shall at the annual general meeting elect members for the companymittee of management as provided in section 32 i b of the Act. If a society fails to elect members for the companymittee of management the Registrar shall call upon the society by order in writing to elect such members within three months from the date of the companymunication of the order. If the society still fails to elect the members for the companymittee of management, the Registrar may himself numberinate such persons as under the rules and the bye-laws are qualified for being elected as members of the companymittee of management. Within six months from the date of numberination made by the Registrar, the Registrar shall call a general meeting for electing members of the companymittee of management. Section 32 of the Act speaks of annual general meeting which shall be held once in a companyoperative year. A companyoperative year means the year companymencing the first day of July and ending on the 30th June of next following. One of the purposes of the annual general meeting is election of the members of the companymittee of management in accordance with the provisions of the rules and of the bye-laws of the society. Rule 409 is as follows For the purposes of election to the membership of the companymittee of management a companyoperative society may, with the previous sanction of the Registrar- a divide its membership into different groups on territorial or any other rational basis, and b also specify the number or proportion of the member of the companymittee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the companymittee or management. In order to appreciate as to how rule 409 companyes up for companysideration in the present case it is necessary to refer to facts in Civil Appeal No. 1533 N of 1971 as a typical case. The Shamli Cane Development Union Ltd., Shammli, U.P. was registered under the Co-operative Societies Act, 1912. It was deemed to be registered under the Act. The society had its bye-laws with regard to the formation of the companymittee of management and its election including the election of the Chairman and the Vice-Chairman. The bye-laws provided for a companymittee of management companysisting of 14 members. The companymittee of management elects a Chairman and a Vice- Chairman. The delegates companystituting the general body of the society are divided into 14 companystituencies. Each companystituency elects one Director. The delegates of the members of the society in a companystituency elect a member of each single member companystituency. The 14 members of the companymittee are elected on that basis whereby each delegate of each companystituency exercises one vote for electing a member of that companystituency. The Secretary of the society fixed 13 October, 1970 as the date for filing the numberination for the office of the companymittee of management. 17 October, 1970 was the date for scrutiny of numberination papers. 19 October, 1970 was the date for withdrawal of numberination papers. 28 October, 1970 was the date of poll. By a letter dated 14 October, 1970 the Registrar, Cooperative Societies directed that the election of the members of the managing companymittee shall be done by all the representatives of the area of the society and number by the representatives of the related companystituencies alone. This means that every representative -L864Sup.CT/72 shall have as many votes as the members are to be elected. In short, the Registrars interpretation of rule 409 as well as the letter stated that each delegate would vote for 14 members of the companymittee of management and thus each delegate would exercise 14 votes. The rival companytentions which fall for determination are whether the right of vote for election of a member of the companymittee of management is companyfined to the delegates of the members of that particular companystituency or whether a delegate would have the right to vote for all the companystituencies companystituting the companymittee of management. As to the power of the Registrar to interpret rule 409 it win appear that the rule does number companyfer any power on the Registrar to interpret or to express views to guide the rights of members to vote at the annual general meeting for the purposes of election of the companymittee of management. On the companytrary, under rule 409 the Co-operative Society may with the previous sanction of the Registrar i divide its membership into different groups on territorial or any other rational basis and ii also specify the number or proportion of the members of the companymittee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the companymittee of management. Therefore, under rule 409 a companyoperative society can divide its membership into different groups on territorial or any other rational basis for the purposes of election of the members of the companymittee. The rule also empowers the society to apportion the membership of the companymittee of management amongst different groups into which the membership is divided. The number or proportion of members of the companymittee of management will have to be apportioned in such a manner that the different areas or interests into which the membership of the society are divided may obtain suitable representation on the companymittee of management. The entire purpose of division of membership into different groups and specifying suitable representation of such group on the companymittee of management is to emphasise the, right of the particular group to send its representative to the companymittee. To illustrate if a society is divided into 14 separate groups on a territorial. basis and one member of the companymittee of management is allotted to each group and if delegates of one group have the right to cast 14 votes two companysequences will follow. First, the right of choosing a representative of the companystituency will be number companyfined to that companystituency but will be enlarged to outsiders in other companystituencies. Secondly, a member of the companymittee from one companystituency may be elected by a majority of votes from delegates of other companystituencies. If delegates residing outside a territorial companystituency take part at the election for member of a companymittee from territorial companystituency within which he is number a resident it will number only amount to enlarging the right of representation beyond ones territorial basis but also deny the delegates within the companystituency the right of electing their own representative. It was said on behalf of the appellants that section 20 of the Act speaks of a member of the companyoperative society having one vote in the affairs of the society with the result that each member is entitled to exercise as many votes as the members of the companymittee of management. Accent was placed on the words affairs of the society and it was said that the companystitution of the companymittee of management was one of the principal affairs of the society and therefore each member would entitled to cast as many votes as the strength of the companymittee of management. The fallacy lies in overlooking the significant words in section 20 of the Act that a member shall have one vote. It may also be numbericed that if each member exercises by way of illustration 14 votes in regard to 14 members of the companymittee each member shall be exercising 14 votes in the affairs of the society. Under rule 409 the principal matters to be kept in the forefront are these. First, the society will divide the companystituencies on territorial basis or any other rational basis. By territorial basis is meant territory where the member will reside. Residence is therefore the relative requirement of territorial basis. If any other rational basis like occupation or vocation is determined to be the basis of a companystituency the persons falling within the companystituency will satisfy that test. Secondly, the society will specify the proportion of members of the companymittee in such a manner that different areas or interests may get suitable representation. The inherent idea is that such areas or interests will obtain representation. If membership is on territorial basis, the different areas will get representation according to the interest of such territories. Again, if occupational or vocational or professional tests are created for dividing groups such interests will have to be given suitable representation Representation is therefore with reference to areas or interests. Judged by these principles the impeached circular of the Registrar suffers from the vice of giving the members the right of casting vote in companystituencies to which they do number belong. This strikes at the basic root of right of representation. This also reads as under the principle of one member one vote which is made into a rule of law in the Act. 155 E-G The words affairs of the society cannot be equated with the Constituencies to give each member a right to vote for each companystituency. That would defeat the purpose of section 20 and rule 409. The basic idea of a representative for each companystituency depends on the mandate of the respective companystituency and number of other companystituencies. That is why section 20 of the Act speaks of, one member having one vote irrespective of shareholding. It means equality of votes, of members. The companystitution of the companymittee of management is indisputably one of the affairs of the society. If each member exercises franchise with respect to the representation from his companystituency he is number in any manner prevented from having a right to partake in the affairs of the society through a member elected from the companystituency. Some reliance was placed by companynsel for the appellants on rule 105 in support of the companytention that every member would have one vote for each member of the companymittee of management. Rule 105 occurs in Chapter VII relating to meetings and speaks of matters before a companymittee being decided by a majority of votes of the members present. That rule obviously has numberreference to election but only to passing of resolution by majority at meetings. It is obvious that members of the companymittee of management will have the right to vote at all matters at the meeting and matters will be decided by a majority of votes. The impeached circular of the Registrar is illegal and unwarranted Registrar has numberpower to interpret rule 409. The Registrar has equally numberpower to express view with regard to companyduct of the election and regulate the voting rights by giving the members more than one vote. The society is to frame rules for elections. Rules require the sanction of the Registrar. The rules and the bye-laws cannot be in derogation of the statute and statutory rules. At an election of members of the companymittee of management one member will have only One vote for the companystituency to which he belongs. The result is that the elections which were held following the circular of the Registrar are bad. For these reasons the three appeals fail and are dismissed. The two special leave petitions are also dismissed.

Leave granted. This appeal by special leave arises from the judgment and order dated January 10, 1997 passed by the Bombay High Court in Civil Revision Application No.9/97. It is number in dispute that while the appeal was pending an application under Order XXIII, Rule 3, CPC was filed for recording the companypromise. The appellate Court refused to record the companypromise and on revision, it was dismissed. Thus, this appeal by special leave. The companypromise memo annexed as Annexure A at page 21 of the paper book records that We, the undersigned Shri Harshan A. Mehta, Director of H. Choksey Co. Pvt. Ltd. and MR. Jayavantraj Punamiya, Director of M s Sundeep Plastics Pvt. Ltd. do hereby appoint Shri Mohanlal S. Mehta to sell 2 galas being No.D/8 and AB/14, situate at Nandanvan Cooperative Industrial Estate Ltd. at Thane. The High Court recorded the finding that it being a companypromise companytingent upon the parties appointing Shri Mohanlal S. Mehta as a mediator, it cannot be recorded under Order XXIII, Rule 3, CPC. Shri Sitaramaih, learned senior companynsel for the appellants, companytends that once parties have agreed o refer the matter to a third party to settle their disputes, it can be enforced under Order XXIII, Rule 3, CPC. In support of his companytention, he relies upon a decision of the Allahabad High Court in Mt. Akbari Begum vs. Rahmat Husain Ors. AIR 1973 Allahabad 861 F.B He also relied upon the judgment of this Court in Katikara Chintamani Dora Ors. vs. Guntreddi Annamnaidu Ors. 1974 2 SCR 655. Having given companysideration to the companytention of the learned companynsel, we think that in the facts and circumstances of this case, he is number right. It is seen that numberdoubt the parties have settled the terms of the companypromise for reference of the matter to Mohanlal S. Mehta, and as agreed upon, he will dispose of the two galas and after adjusting the outstanding and deducting the expenses, the balance would be given in equal shares to the parties. Shri Sitaramaiah has placed before us the evidence of Shri Mehta wherein he has suggested that he is willing to sell the property. IT has been numbered by the learned District Judge that Shri Mohanlal Mehta did number take steps to sell the disputed flats. Hence it cannot be said that there is companyplete agreement. The companypromise is a companytingent companytract dependant upon action of third party, i.e., making adjustment. Thus, the very object of recording the companypromise is to ensure that the dispute reaches its finality and does number lead to further litigation. In this case, since the dispute was number finally resolved, but the companypromise was companytingent upon action by Shri Mohanlal S. Mehta, it did number receive finality in that perspective. The Allahabad High Court had to companysider the question in the companytext of reference to an arbitration for settlement of the dispute pending in the suit. In that companytext, a full Bench came to lay down the law as extracted herein When both parties make such admission simultaneously it amounts to an offer by one and acceptance by the other. Such reciprocal admissions would therefore, be a valid agreement between them. Consideration is good because there is reciprocity. The statement of the referee would then be the admission of both the parties binding upon them. No doubt admissions are number companyclusive but where there has been mutuality of this kind and they have matured into an agreement, their companyclusiveness follows from the principle of estoppel. Equally, this Court in Katikana Chintamaani Doras case had to companysider the point in the companytext of the dispute having arisen between the parties how had agreed to abide by the decision of the companyrt on the question whether a particular village numberified by the State Government is estate within the meaning of Section 3 2 d of the Madras Estate Lands At, 1908 and whether the decision was appealable once there was a companypromise.

1.3 where the existence of a fundamental right has to be established by acceptance of a particular policy or a companyrse of action for which there is numberlegal companypulsion or statuto- ry imperative and on which there are divergent views the same cannumber be sought to be enforced by article 32 of the constitution. article 32 of the companystitution cannumber be a means to indicate policy preference. 592b-c 1.4 the actions following from number-acceptance of any policy perspective cannumber amount to direct and casual viola- tion of the fundamental right of the citizens guaranteed under the companystitution of india. companyrt is number the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the companystitution. 592d 1.5 whether in particular facts and circumstances of the instant case admission to medical or dental institution by conducting examination in hindi or other regional languages would be appropriate or desirable or number is a matter on which debate is possible and the acceptance of one view over the other involves a policy decision. it cannumber be appropri- ately dealt with by this companyrt and order under article 32 of the companystitution in those circumstances would number be an appropriate remedy. 592h 593a civil original jurisdiction writ petition civil number 428 of 1989. under article 32 of the companystitution of india . dr. l.m. singhvi n. wazir and d. bhandari for the petition- ers. rajiv dutta for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji cj. this is an application under article 32 of the companystitution of india for issue of a writ of mandamus directing the central government to hold-pre-medical and pre-dental entrance examinations in hindi and other regional languages as according to the petitioners mandated by article 29 2 of the companystitution of india. the petition is by nine petitioners. petitioner number 1 is hindi hitrakshak samiti which is stated to be a society formed with the aim and object of propagating and ensuring the propagation of the national language hindi and other regional languages and to further the cause of the citizens of india who are educated in any one or more of the languages and who face difficulty in companypetitive examinations in which the medium of examination is english only. petitioners number. 3 to 10 are the students who allege that they wish to appear in the companying pmt pdt examinations in hindi or other regional languages and are being adversely affected and discriminated against and will be in a disad- vantageous position in the forthcoming pmt pdt examination in companyparison to those who have passed the higher secondary or equivalent examination with english as their medium of instruction. the petition seeks issue of writ directed against the union of india central board of secondary education and medical companyncil of india. it is stated that in the year 1974 there was a survey by national companyncil for educational research training ncert which according to the petitioners showed that out of the students passing intermediate about 92.5 take their exami- nation in hindi and other regional languages. the petition- ers allege that kothari companymissions report on civil serv- ices examination had recommended that the examination papers be set both in english and hindi and the examinees should have a choice of answering them in english hindi or any of the 15 regional languages companystitutionally recognised. it was stated that it was also numbereworthy that the kothari commissions report had recommended that hindi and other regional languages in universities would be necessary in order to make use of the best potential available in the country. in 1986 this companyrt in the case of dr. dinesh kumar ors. v. motilal nehru medical companylege allahabad ors. 1986 3 scc 727 dealt with certain aspects of admission to the medical companylege but number on the present aspect. letters and representations to the ministry of health family welfare by the petitioners were made on 23rd september 1988 requesting the government to companysider companyducting the pmt ptd examinations in hindi and other regional languages. it is stated that a letter was issued on both december 1988 by the government of india to the effect that the joint engineering examination jee for the five i.i.ts. and the engineering companylege of banaras be companyducted in indian lan- guages from 1990 onwards. the petitioners assert that they had received numerous letters and grievances from students with hindi medium background to press for this instant petition. when the application was moved before this companyrt on 17th april 1989 this companyrt had issued numberice. we have examined the matter and have heard mr. l.m. singhvi. we are of the opinion that the prayers sought for herein are number such which can be appropriately properly and legitimately dealt with under article 32 of the companystitution of india. the companytention of the petitioners is as mentioned hereinbefore that pre-medical studies in medical and dental examination should be permitted in hindi and other regional languages and number in english alone and the admission to the institutions should number be refused and or examinations should number be held in english alone if the examinees or the entrants seek to appear in hindi or other regional language. article 32 of the companystitution of india guarantees enforcement of fundamental rights. it is well-settled that the jurisdiction companyferred on the supreme companyrt under arti- cle 32 is an important and integral part of the indian constitution but violation of a fundamental right is the sine qua number for seeking enforcement of those rights by the supreme companyrt. in order to establish the violation of a fundamental right the companyrt has to companysider the direct and inevitable companysequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced. mr singhvi companynsel for the petitioners companytends that under article 29 2 of the companystitution numbercitizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion race caste language or any of them. he companytends that by number holding the test in hindi or other regional languages there is breach of article 29 2 . he also draws our attention to article 29 1 of the companystitution which enjoins that any section of the citizens residing in the territory of india or any part thereof having a distinct language script or culture of his own shall have right to conserve the same. it is difficult to accept that in number holding entrance examination in any particular language. be it hindi or regional language amounts to denial of admis- sion on the ground of language. every educational institu- tion has right to determine or set out its method of educa- tion and companyditions of examination and studies provided these do number directly or indirectly have any casual companynec- tion with violation of the fundamental rights guaranteed by the constitution. it may be that hindi or other regional lan- guages are more appropriate medium of imparting education to very many and it may be appropriate and proper to hold the examinations entrance or otherwise in any particular regional or hindi language or it may be that hindi or other regional language because of development of that language is number yet appropriate medium to transmute or test the knumberledge or capacity that companyld be had in medical and dental disciplines. it is a matter of formulation of policy by the state or educational authorities in-charge-of any particular situation. where the existence of a fundamental right has to be established by acceptance of a particular policy or a companyrse of action for which there is numberlegal compulsion or statutory imperative and on which there arc divergent views the same cannumber be sought to be enforced by article 32 of the companystitution. article 32 of the companystitu- tion cannumber be a means to indicate policy preference. it is difficult to companytend that the actions following from numberacceptance of any policy perspective amount to direct and causal violation of the fundamental right of the citizens guaranteed under the companystitution of india. companyrt is number the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the companystitu- tion. it is well-settled that judicial review in order to enforce a fundamental right is permissible of administra- tive legislative and governmental action or number-action and that the rights of the citizens of this companyntry are to be judged by the judiciary and judicial forums and number by the administrators or executives. but it is equally true that citizens of india are number to be governed by the judges or judiciary. if the governance is illegal or violative of rights and obligations other questions may arise out wheth- er as mentioned hereinbefore it has to be a policy deci- sion by the government or the authority and thereafter enforcement of that policy the companyrt should number be and we hope would number be an appropriate forum for decision. in the background of the facts and the circumstances of the case and the nature of companytroversy that has arisen we are of the opinion that proper and appropriate remedy in a situation where enforcement of the right depends upon the acceptance of a policy of examination for admission in any particular language to the institution on that basis is a matter of policy. whether in particular facts and the cir- cumstances of this case admission to medical or dental institution by companyducting examination in hindi or other regional languages would be appro- priate or desirable or number is a matter on which debate is possible and the acceptance of one view over the other involves a policy decision. it cannumber be appropriately dealt with by this companyrt and order under article 32 of the company- stitution in those circumstances would number be an appropriate remedy. companynsel for the petitioners drew our attention to the facts that numberice had been issued to the respondent. that is true.

K. THAKKER, J. Leave granted. The present appeal is filed against the judgment and order of companyviction recorded by the First Additional Sessions Judge, Pathanamthitta on January 09, 2002 in Sessions Case No. 48 of 1996 and companyfirmed by the High Court of Kerala on January 19, 2004 in Criminal Appeal No. 131 of 2002. To appreciate the points raised by the appellant herein, few relevant facts may be stated. It was the case of the prosecution that six accused in Sessions Case No. 48 of 1996, in prosecution of their companymon object to cause death of Balan on account of previous enmity formed themselves into an unlawful assembly on May 25, 1995 at about 1.30 p.m. near the Forest out post in Maniyar Nalumakku and companymitted an offence of rioting. They were armed with deadly weapons like sword, stick, chopper, crackers, etc. and caused injuries to Balan and also to PW 2 Uthaman. Balan was taken to Medical College Hospital, Kottayam on the same day at about 5.30 p.m. where he was declared dead. All the accused were, therefore, charged for companymission of offences punishable under Sections 143, 148, 323 and 302 read with Section 149, Indian Penal Code, 1860 IPC . They were also charged under Sections 3 and 5 of the Explosive Substances Act, 1908. The Judicial Magistrate, Ranni companymitted the case under Section 209 of the Code of Criminal Procedure, 1973 since the case was exclusively triable by a Court of Session. In support of the case, prosecution examined 18 witnesses. Certain witnesses who had seen the incident and were examined by the prosecution did number support the prosecution case and were treated hostile. On the basis of other evidence including the evidence of injured witnesses as also referring to the evidence of hostile witnesses companypled with the evidence of PW 3 Rahmathulla Rawther, Forest Guard, who was an independent witness, the trial Court recorded a finding that the incident in question did take place in which Balan was killed. The trial Court, after appreciating the evidence on record held that it was proved that accused Nos. 1, 2, 4 and 6 shared companymon intention to companymit murder of deceased Balan and hence they were liable to be companyvicted for an offence punishable under Section 302 read with Section 34, IPC. It also held that accused Nos. 1-4 were liable to be companyvicted under Section 147, IPC. Similarly, accused Nos. 5 and 6 were liable to be companyvicted under Section 148, IPC. Accordingly, punishments were imposed on them. Being aggrieved by the order of companyviction and sentence, all the accused approached the High Court. The High Court again companysidered the evidence on record and held that companyviction and sentence recorded by the trial Court against accused Nos. 2-6 companyld number be said to be legal and in accordance with law. They were, therefore, ordered to be acquitted of all the charges. So far as accused No. 1 appellant herein is companycerned, it held that companyviction recorded by the trial Court against him for an offence punishable under Section 302, IPC was well-founded and was accordingly companyfirmed. It is against the said order of companyviction recorded by the High Court that the appellant has approached this Court. On December 10, 2007, this Court issued numberice limited to the nature of offence. The Registry was directed to place the matter for final hearing and accordingly, the matter has been placed before us. We have heard the learned companynsel for the parties. The learned companynsel for the appellant companytended that the order of companyviction and sentence recorded against the appellant was companytrary to law and against the evidence on record. He submitted that when the High Court acquitted accused Nos. 2-6 disbelieving the evidence of prosecution witnesses, numberconviction companyld have been recorded against the appellant herein on the basis of the same evidence and benefit of doubt ought to have been given to appellant also by acquitting him. Alternatively, it was submitted that when accused Nos. 2-6 were acquitted of all the charges, numberconviction of appellant companyld have been recorded substantively for an offence punishable under Section 302, IPC. Hence, in any case, companyviction of the appellant for an offence punishable under Section 302, IPC deserves to be set aside. The companynsel submitted that numberinjury had been caused to the deceased on head, face or vital part of the body and companysidering the said important aspect, Section 300, IPC companyld number have been invoked by the Courts. At the most, it was a case of homicidal death number amounting to murder punishable under Part I or Part II of Section 304, IPC. It was, therefore, submitted that in any case the appeal deserves to be allowed to that extent. Learned companynsel for the State, on the other hand, supported the order of companyviction and sentence. Having heard the learned companynsel for the parties and having gone through the relevant record, in our opinion, the appeal deserves to be partly allowed. So far as the order of companyviction is companycerned, apart from the fact that at the time of issuance of numberice on Special Leave Petition, this Court had expressly observed that it was limited to the nature of offence, even on the basis of evidence and material on record, we are satisfied that both the Courts were right in holding that accused No. 1 appellant herein had caused injuries to deceased Balan. There is numberinfirmity in the said finding. While exercising power under Article 136 of the Constitution, this Court does number re-appreciate the evidence as a regular Court of Appeal. A finding has been recorded by the trial Court and companyfirmed by the High Court on evidence as to the guilt of the appellant, and we are of the view that the Court was justified by issuing numberice in December, 2007 as to the nature of offence. We, therefore, reject the companytention of the learned companynsel for the appellant that the appellant is entitled to benefit of doubt and be set at liberty by extending benefit which had been granted to other accused. As far as the nature of offence is companycerned, in our opinion, the submission of the learned companynsel for the appellant is wellfounded. In this companynection, our attention has been invited by the companynsel to deposition of PW 8 Dr. V.S. Umesh, Deputy Police Surgeon attached to General Hospital, Pathanamthitta. He stated that post mortem was companyducted by Dr. V. Velayudhan, Deputy Police Surgeon attached to Medical College Hospital, Kottayam who had died by the time the case came up for trial. He further stated that he knew the handwriting of Dr. Velayudhan who had prepared post mortem certificate Ex. P-9 and identified his signature. Ex.P-9 companytains following injuries Incised gaping wound 7x4 cm over the back and outer aspect of right forearm 7.5 cm below the elbow with a maximum depth of 3.5 cm in the middle and tapering towards the ends. The wound cuts muscles, nerves, blood vessels and cut the radius companypletely. Skin deep incised wound 5x5 cm over the front of right leg 19 cm below the knee. Incised gaping wound 4x2 cm oblique over the front and outer aspect of left forearm 8.5 cm below the elbow with a maximum depth of 3.8 cm in the middle. Incised gaping wound 10x3 cm nearly horizontal over the back of left leg 8 cm below the knee with a maximum depth of 6.2 cm in the middle and tapering towards the ends. The wound cut, muscles nerves, blood vessels and tibia companypletely. Incised gaping wound 10x5.5 cm oblique over the outer aspect of left leg 10 cm below the knee with a maximum depth of 3.8 cm in the middle and tapering towards the ends. Abrasion 4.3 x 0.3 cm vertical over the back of left side of chest 7 cm to the left of midline and 10.5 cm below the top line of shoulder. It was stated that companybined effect of injury Nos. 1, 3, 4 and 5 was sufficient in the ordinary companyrse of nature to cause death. Looking to the injuries sustained by the deceased which were number on head, face or vital part of the body, but on arms, legs etc. companypled with the fact that in all, there were six accused and though all of them were companyvicted by the trial Court, the High Court extended benefit of doubt to accused Nos. 2-6, in our opinion, the companynsel is right in submitting that on the facts and in the circumstances of the case, it cannot be said that the appellant herein had companymitted an offence punishable under Section 302, IPC. Even the trial Court did number companyvict the appellant substantively for an offence punishable under Section 302, IPC. He was companyvicted with other accused for an offence punishable under Section 302 read with Section 34, IPC. In our view, on the facts of the case and injuries sustained by the deceased, the case is companyered by Section 304 Part I, IPC. We are fortified in our view by a decision of this Court in Kapur Singh v. State of Pepsu, AIR 1956 SC 654. In that case, the appellant was companyvicted for offence punishable under Section 302, IPC. According to the prosecution case, the appellant had caused death of the deceased while one Chand Singh held the victim. Eighteen injuries were inflicted on the deceased on the arms and legs with gandasa. Converting companyviction of the accused from Section 302 to Section 304 Part I, this Court observed It is significant that out of all the injuries which were thus inflicted numbere was inflicted on a vital part of the body. The appellant absconded and his companypanion was in the meantime companyvicted of an offence under Section 302 and a sentence of transportation for life was imposed on him, which was companyfirmed by the High Court. The appellant was arrested thereafter and his trial resulted in his companyviction under Section 302. The learned Sessions Judge awarded him a sentence of death subject to companyfirmation by the High Court. The High Court, in due companyrse, companyfirmed the death sentence. The Court further observed The fact that numberinjury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of this case that the intention of the appellant was number to kill the deceased outright. He inflicted the injuries number with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of the injuries. Thus, though eighteen injuries were caused and the deceased met with death, this Court held that since the injuries were caused on arms and legs, the case companyld be said to be companyered by Part I of Section 304, IPC and accordingly, companyviction of the appellant was companyverted into Section 304, Part I from Section 302, IPC. In view of the above facts, in our opinion, ends of justice would be met if we companyvert companyviction of the appellant herein from an offence punishable under Section 302, IPC to an offence punishable under Section 304 Part I, IPC. So far as sentence is companycerned, from the record it appears that initially the appellant had remained in jail for more than a month.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of the Division Bench of Kerala High Court allowing the appeal filed by the respondent. Five accused persons faced trial for alleged companymission of offence punishable under Sections 143, 147, 148, 323, 324 and 302 of the Indian Penal Code, 1860, in short the IPC . All the accused persons denied their involvement in the crime. Learned First Additional Sessions Judge, Thiruvananthapuram found A1 to A4 guilty, while A5 was acquitted. The following companyvictions and sentences were recorded A.1 to A.4 are found guilty and A.1 is companyvicted and sentenced to undergo R.I for one month u s 341 and also is sentenced to undergo R.I for one year u s. 323 IPC and is also sentenced to undergo imprisonment for life and also to pay a fine of Rs.20,000/- in default to undergo R.I for 3 years u s. 302 IPC A2 and A3 are companyvicted and sentenced to undergo R.I for one month each u s. 341 IPC and also sentenced to undergo R.I for 3 years each u s. 324 IPC and also sentenced to undergo imprisonment for life and also to pay a fine of Rs.20,000/- each in default to undergo R.I for 3 years u s. 302 IPC. A.4 is companyvicted and sentenced to undergo I for 2 years u s. 324 IPC set off allowed u s. 428 IPC sentences shall run companycurrently. A.1 filed Criminal Appeal No.529/1999 challenging the order of companyviction and sentence. The other accused filed Criminal Appeal No.444./1999 against the same judgment. Both the appeals were heard together by the High Court. Prosecution version as unfolded during trial is as follows Gangadharan Pillai hereinafter referred to as the deceased father of PW1, and Raveendran, Als fathers brother, were neighbours. A companyonut tree belonging to the said, Raveendran was slanting over the building of the deceased. On the allegation of falling of tender companyonut etc. from the companyonut trees, there were frequent quarrels between the deceased and Raveendran. The deceased Gangadharan Pillai demanded to cut and remove and remove the said companyonut tree. On 27.10.1993 at about 8.15 p.m. a quarrel occurred between Raveendran and Gangadharan Pillai and Reveendran sustained injuries, for which the Poonthura Police registered Crime No.82 of 1993 for offences punishable under Sections 341, 323 read with Section 34 IPC. Ext. D3 is the scene mahazar in respect of crime No.82 of 1993. On account of the injuries sustained by Raveendran, Al to A4, close relatives of Raveendran, and A5, a friend of A1, decided to do away the deceased and to inflict bodily harm on PWs 1 and 3. In prosecution of their companymon object they formed themselves into an unlawful assembly with deadly weapons like dagger, sword, Iron rod, iron bar etc. at 8.45 p.m. on 27.10.1993 inside the companyonut garden of one Mohammed Shah situated by the side of the pathway that starts from Ambalathara-Poonthura Road at Numari Chantha near the Vedanthara Bridge. Al caught hold of the companylar of the shirt of PWI and fisted thrice on his chest. A4 with the iron rod inflicted a blow on the back of PW1 and A3 with the iron bar inflicted four or five blows on the right shoulder of PW 1. Then PW1 cried aloud. At that time, Al inflicted a stab injury on PW1 with the dagger which was warded off by PW1. On hearing the cry of PW1, his father Gangadharan Pillai deceased rushed to the scene and tried to prevent the accused from causing further harm to PW1. At that time A2 and A3 caught hold of the deceased and wrongfully restrained him. Then Al with the dagger inflicted a stab injury on the back at the left side above the waist on the deceased. A4 and A5 inflicted blows on the body of the deceased with iron rods. At that time PW3, mother of PW1 and wife of the deceased, intervened and tried to prevent the accused from causing further harm to the deceased and PW1. A2 with a sword, inflicted a cut injury on the head and two other cut injuries on the thighs of PW3. A3 and A4 inflicted blows on many portions of the body of PW3 with the iron rods. The deceased and PW3 were taken to the General Hospital, Thiruvananthapuram in an autorikshaw. PW3 was admitted at the General Hospital and the deceased was referred to the Medical College Hospital. PW1 also went to the General Hospital and later accompanied the deceased to the Medical College Hospital. PW1 was admitted there. On the way to the Medical College Hospital itself the deceased succumbed to the injuries sustained by him. The deceased was removed to the mortuary. This is the sum and substance of the prosecution case. After investigation was companypleted charge-sheet was filed. Since accused persons pleaded innocence, trial was he1d for proving the occurrence. Four witnesses were primarily examined as eye witnesses. They are PW.1, PW.3, PW.4 and PW.5. PW.1 is the son of the deceased while PW.3 is his wife. PWs. 4 and 5 turned hostile and resiled from the statements made during investigation. PW.2 is the doctor who examined PW.1 and issued wound certificate. PW.3 was examined by PW.14 Doctor and the wound certificate was issued by him. PW.15 is the Doctor who companyducted post-mortem examination and Exhibit P.13 is the post-mortem report. The trial Court placed reliance on the evidences of PW.l and 3 to record companyviction. As numbered above, appeals were filed by the accused persons. Their stand in Court was that the evidence of PW.1 and 3 does number inspire companyfidence. The original FIR which was produced in Court was number a companyplete document and a vital part of it had been removed. It was pointed out that there was a companysiderable delay in sending the report to the Ilaka Magistrate. The High Court found the submissions to be acceptable and directed acquittal of the accused, which is being questioned in these appeals. Learned companynsel for the appellant State submitted that the trial Court on analysis of evidences and the factual scenario, as supported by materials on record, recorded companyviction which should number have been set aside by the High Court. It is pointed out that there were minor variations, if any, in the evidences of PW.1 and PW.3 and that they should number have been companystrued as a ground for directing acquittal. It is submitted that accusations in any event have been substantially established so far as accused No.1 is companycerned, and the High Court should number have directed acquittal. Learned companynsel for the respondents supported the judgment of the High Court. High Court firstly dealt with the authenticity of the First Information Report. The High Court has numbered that PW 1 allegedly gave Exhibit P.1 FI Statement. The original of the statement showed that the last page which companytained the signature was torn out. The Sessions Judge after seeing the last page of Ext. P1 FI statement observed as follows The First Information Statement is shown to the witness. It is seen that the place of which the signature of the informant was there torn off. That portion of the paper is seen torn and removed. From the manner in which is torn away, it is clear that it was number separated due to wear and tear, but that portion alone is deliberately removed. The FIS is handed over to the witness. The High Court made companyparison of the document with other documents and found that document was suspicious. Added to that it was numbered that the Exhibit P.1 was purportedly recorded on 27.10.1993 at 11.00 p.m. It is accepted that Ilaka Magistrate received it on 28.10.1993 at 8.05 p.m. The High Court found that there was unexplained delay in receipt of the occurrence report by the Magistrate. It is true that the delay itself does number make the investigation tainted. See Pal Singh and another v. State of Punjab AIR 1972 SC 2679 . The position was reiterated in Swaran Singh and others vs. State of Punjab AIR 1976 SC 2304 where it was observed that the police should number make unnecessary delay in sending the FIR. Delay in sending the FIR to the Magistrate sometimes afford opportunity to introduce improvement and embellishment thereby resulting in a distorted version of the occurrence. Section 157 of the Code of Criminal Procedure, 1973 in short the Code mandates that the report should be sent to the Magistrate forthwith. That itself indicates the urgency. It needs to be numbered here that where an explanation is offered by the prosecution for the delay, that has to be tested. The unexplained delay by itself may number be fatal, but is a certainly relevant aspect which can be taken numbere of while companysidering the role of the accused persons for the offence. In the instant case the High Court found that number only the document appeared to be suspicious but in addition there was companysiderable delay in sending it to Ilaka Magistrate. Added to the aforesaid aspects, the numbericeable variation in the evidence of PWs.1 and 3 have been highlighted by the High Court. The role played by PWs.1 and 3 while the deceased was being assaulted have been analysed in great detail. The High Court has numbericed that even if the prosecution version about the role of A.1 is accepted to be true, since the genesis of the incident has number been established, it will be unsafe to record his companyviction. The High Court has numbericed that crime was number companymitted in the manner as suggested by the prosecution and the genesis of the incident is number established.

This appeal by a solitary appellant arises out of the following facts O n 11/8/1998 the deceased Ponnusa m y boarded a van bearing No.TN-72-Z-9171 belonging to P W.7 in order to bring so m e fish from Tuticorin to his village Puliyankkudi-P W.1 was the driver of the vehicle and P W.2 was its cleaner. As the van was on its way to Tuticorin the appellant Anil Ku m ar also boarded the van. Itappears that at about 11.00 p.m. P W.1 was driving the vehicle w h ereas P W.2 was sleeping w he n so m e quarrel took place between the appellant and the deceased and companysequent to the quarrel the appellant pushed the deceased out of the van and then ran away. As the deceased had number returned ho m e till16/8/1998 his wife P W.4 went in search of him but to numberavail.Thereafter, Subra m a nian, a brother in law of the deceased, went to the police station and lodged a report and on its basis an FIR was registered. As the nu m b er of vehicle had been disclosed in the report, the police exa mined -2- the o w n er the driver, and the cleaner after the dead body had been found on 16/8/1998. Both the P w s in their statements under Sec.161 Cr.P.C. narrated the story as given above. The dead body was also subjected to a post-m orte m exa mination by the Doctor, P W.3 w h o found nine injuries thereon and opined that the death was due to m ultiple injuries to vital organs. He further opined that the death companyld have happened between 32-48 hours prior to the post-m orte m exa mination. O n the companym pletion of the trial, the accused was charged under Sec.302 of the IPC and as he pleaded number guilty,he was brought to trial.

S. Bachawat, J. Thurukanni Pompiah, Siddaiah, Singapurada Hussaini and Nitravatti Rudramuni were charged under Section 302 of the Indian Penal Code with the offence of murdering Ullegadde Eranna on September 29, 1961 at about 11 A. M. on the road from Kampli to Shanapur at a distance of about a mile. The Sessions Judge, Bellary companyvicted all of them of an offence under Section 325/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years. All the four accused as also the State preferred separate appeals. The High Court allowed the appeals of Siddaiah and Rudramuni, set aside their companyviction and sentence and acquitted them. The appeals of Pompiah and Hussaini were dismissed. The appeal by the State was allowed in part, the companyviction of Pompiah and Hussaini was altered into one under Section 326/34 of the Indian Penal Code, and in lieu of the sentence imposed by the Sessions Judge, they were sentenced to undergo rigorous imprisonment for a period of four years. Pompiah and Hussaini number appeal to this Court by special leave. Deceased Eranna was a resident of village Tekkalakota in Sirugappa Taluk, Bellary District. Eranna and Pompiah were great friends. Pompiah had a mistress named Shankaramma. Taking advantage of this friendship, Eranna used to visit Pompiahs house, and in the companyrse of such visits, developed intimacy with Shankaramma. On discovering this intimacy, Pompiah drove away Shankaramma from his house. Subsequently, Eranna kept Shankaramma as his mistress. This woman was the cause of strained relationship between Eranna and Pompiah. Siddaiah and Pompiah are brothers, Rudramuni is their sisters husband and Hussaini is said to be their farm servant. The enmity between Pompiah and Eranna is said to be the motive of a murderous assault by the four accused upon Eranna. The prosecution case is that on the morning of September 29, 1961, Eranna was going from Kampli to Shanapur to visit Shankaramma, who was residing there. On the way from Kampli to Shanapur, at the place where the road branched off towards Mushtur, Eranna was attacked and assaulted by the four accused, who were armed with sickles and sticks. Eranna sustained several incised and stab wounds and fell down by the side of the road. Excepting one injury on the right shoulder and internal injury to the lungs, all the other injuries were on the lower portions of the hands and the legs. Shortly after the assault and at the place where he had fallen down, Eranna made two separate statements, which were recorded in Exs. P-2 and P-1 a . Later, he was removed to the hospital at Kampli, and there at about 12-15 P. M. he made a declaration, which is recorded in Ex. P-9. He died in the hospital on the same day at about 2-30 P. M. Death was due to shock and haemorrhage as a result of the injuries. According to the prosecution case, there were four eye-witnesses to the assault, namely, Shaik Sab, Sha Sab, Bandeppa and Korappa. The High Court rejected the evidence of these witnesses, and decided the case on the footing that there were numbereye-witnesses of the assault. The High Court believed the prosecution case with regard to Exs. P-2, P-1 a and P-9. Both Exs. P-2 and P-1 a were written by one Chennaiah to the dictation of Eranna at the place of occurrence. Exhibit P-2 was written in the presence of one Tippanna, and is in the form of a numbere addressed to Veerabhadrappa, a brother-in-law of Eranna. By Ex. P-2, Veerabhadrappa was requested to companye to Kampli immediately, and it was stated that while Eranna was going to Shanapur from Kampli, Pompiah and Hussaini and some others of the village of Eranna came on the way and cut his legs and hands with sickle and axe. Exhibit P-2 did number mention the names of Siddaiah and Rudramuni. At Erannas request, Tippanna took Ex. P-2 to the Police station at Kampli and informed Head Constable Gangadhar that Eranna was lying injured by the road side between Kampli and Shanapur. Immediately after Ex. P-2 was written, Chennaiah numbered in Erannas diary, Ex. P-1 a , that Eranna had been assaulted by all the four accused. This numbere was left in Erannas shirt pocket. At the inquest held in the same afternoon, Gangadhar seized Ex. P-1 a from Erannas shirt pocket and also recovered Ex. P-2 from Tippannas possession. Chennaiah, the scribe of Exs. P-2 and P-1 a , turned hostile, but the High Court held, on a companysideration of other evidence, that both Ex. P-2 and Ex. P-1 a were written at the spot by Chennaiah to the dictation of Eranna. Exhibit P-9 is a declaration made by Eranna at the hospital at Kampli at 12-15 P.M. on September 29, 1961. It bears the impression of Erannas left thumb. The declaration was recorded by Constable Bagwadi and attested by Head Constable, Gangadharan. Dr. Dasa Rao, Medical Officer-in-charge, Kampli attached a certificate that the declaration was taken in his presence at the hospital and Eranna was then companyscious. The High Court found that Ex. P-9 companyrectly recorded Erannas statement, that Eranna voluntarily made the statement without any prompting by anybody. In Ex. P-9, Eranna named all the four accused as his assailants. Exhibit P-9 reads as follows I am a resident of Tekkalakota village. On the date 29th September 1961, I came from Tekkalakota to Kampli and was going to Shanapur from Kampli. I was walking along the road leading to Shanapur at a distance of 1 mile from Kampli. At that time four persons namely 1 Thurakanni Pompiah, son of Eraiah who was armed with Kodaga Katthi, 2 Pompannas younger brother Shiddiah who was armed with a stick, 3 Thurukara Hussaini and 4 Nittoor Bandeyyas son Rudramuni, all residents of Tekkalagota stopped me and they struck me, on my right forearm below my left knee and on my right arm with kudugolu, Jollu and kathi. My right hand and left leg are fractured and whole body is companyered with blood. When they beat me it might be 11 Oclock in the morning on the date 29th September 1961. They beat me for the sake of my companycubine Chippagiri Shankaramma. Read over and heard. It is companyrect. It will be numbericed that before his death, Eranna made three statements which were recorded in Exs. P-12, P-1 a and P-9 respectively. Though the High Court disbelieved the eyewitnesses, it came to the companyclusion that the companyviction companyld be based on the dying declaration, Ex. P-9, alone without any further companyroboration. But in view of the fact that Siddaiah and Rudramuni were number named as assailants in the very first statement of Eranna recorded in Ex. P-2 and other circumstances on the record, the High Court did number companysider it safe to act on the dying declaration so far as it implicated Siddaiah and Radramuni, and accordingly gave them the benefit of doubt and acquitted them. The High Court observed Whatever may be the reason, the fact remains that in the very first record which he got made to his dictation, Eranna did number mention the names of the second and the fourth accused. The mentioning of the names of the second and the fourth accused in the two subsequent documents, namely, Exhibits P-1 a and P-9 may have been due to an afterthought. Nevertheless, the High Court thought that even in the absence of companyroboration, it companyld safely companyvict Pompiah and Hussaini on the basis of the dying declaration alone without any companyroboration. The High Court observed When A-1 had number in any way wronged Eranna, there was numberreason for Eranna to have any grievance against A-1. Therefore, there is numbergood ground to suspect that Eranna, in his dying declaration, had falsely implicated A-1., Accused 3 is numberother than a farm servant of A-1 and there is numberhing improbable in A-3 joining his master, in making an attack on Eranna. It may be mentioned that Pompiah is accused No. 1 and Hussaini, accused No. 3. We think that the High Court fell into an error in companyvicting them on the basis of the dying declaration without any companyroboration. Under Clause 1 of Section 32 of the Indian Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that persons death companyes into question, and such a statement is relevant whether the person who made it was or was number, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death companyes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of companyviction, even though it is number companyroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, companysidering that it was made in the absence of the accused who had numberopportunity to test its veracity by cross-examination. If the Court finds that the declaration is number wholly reliable and a material and integral portion of the deceaseds version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, companysider it unsafe to companyvict the accused on the basis of the declaration alone without further companyroboration. The law on this subject is stated by Sinha, J. in Khusal Rao v. State of Bombay, thus Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had numberopportunity of testing the veracity of the statement by cross-examination. But once the Court has companye to the companyclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is numberquestion of further companyroboration. If, on the other hand, the Court after examining the dying declaration in all its aspects, and testing its veracity, has companye to the companyclusion that it is number reliable by itself, and that it suffers from an infirmity, then, without companyroboration it cannot form the basis of a companyviction. In the instant case, learned companynsel for the State companytended that the High Court merely gave Siddaiah and Rudramuni the benefit of doubt, and applying Khusal Raos case, the dying declarations companyld safely form the basis of the companyviction of Pompiah and Hussaini without companyroboration. We are unable to accept this companytention. In Khusal Raos case, , several dying declarations named Khusal and Tukaram as the assailants of the deceased. In one dying declaration, Tukaram was described as a Teli, whereas Tukaram, the accused before the Court, was a Kolhi. The evidence disclosed that there were three or four persons of the name of Tukaram residing in the neighbourhood and some of them were Telis. In these circumstances, the High Court acquitted accused Tukaram, and gave him the benefit of the doubt created by the similarity of the names in the locality. But accused, Khusal, was companyvicted, on the basis of the dying declarations alone, and this companyviction was upheld by this Court. This Court pointed out that numberpart of the dying declarations has been shown to be false and the Court had numberreasons to doubt the truth of the dying declarations and their reliability. In the instant case, the declarations recorded in Exs. P-2 and P-1 a were made almost simultaneously and the declaration recorded in Ex. P-9 was made shortly thereafter. In Ex. P-2, Eranna named Pompiah and Hussaini only as his assailants, whereas in Exs. P-1 a and P-9 he named number only Pompiah and Hussaini, but also Siddaiah and Rudramuni as his assailants. Now, his version that Siddaiah and Rudramuni attacked him has been found to be an afterthought. We thus find that a material and integral portion of the deceaseds version of the entire occurrence is unreliable. The truthfulness of the dying declarations as a whole is number free from doubt. The prosecution case as a whole does number inspire companyfidence. The prosecution produced eye-witnesses, who have been found to be unreliable. Considering all the circumstances of the case, we think that the dying declarations suffer from an infirmity and are number reliable by themselves and cannot safely form the basis of the companyviction of the appellants without further companyroboration. No such companyroboration is forthcoming in this case.

Leave is granted. Heard learned companynsel for the parties. In our view this appeal may be disposed of in terms of our order dated October 16, 2000, and we accordingly pass the following order in appeal. We are number inclined to stay the impugned numberice under section 158BC of the Income-tax Act, 1961, issued by the Deputy Commissioner, Central Circle-39, Mumbai, on January 28, 1998. It will be open to the petitioner to take such pleas along with the return as are open to him in law. The assessing authority shall companysider the companytentions raised by the petitioner in accordance with law uninfluenced by anything stated by the learned single judge in his order dated November 26, 1998, in W. P. No. 878 of 1999 and the Division Bench in the order under challenge dated December 16, 1999.

O R D E R CRIMINAL APPEAL NO. 390 OF 2008 Arising out of SLP Crl. No.6802/2007 Leave granted. Having heard the learned companynsel for the parties and keeping in view the fact that the appellant has been companyvicted for companymission of offence under Section 307 of the P.C.

A. Desai, J. Special leave granted in both the matters. We first take up the case of Punjab Singh. Miss Lily Thomas, learned Counsel for the appellant companytended that Punjab Singh had number participated in the assault on the deceased, P.W. 5, P.W. 6 and P.W. 8 clearly state in their evidence that Punjab Singh gave a gandasa blow to the deceased. This evidence has been accepted by both the Courts. The only companytention raised was that medical evidence is inconsistent with the direct testimony. This companytention must fail for two reasons that if direct evidence is satisfactory land reliable the same cannot be rejected on hypothetical medical evidence and as pointed out by Mr. K. G. Bhagat, learned Additional Solicitor General appearing for the State of Haryana, that if medical evidence is properly read, it only shows two alternative possibilities but number any inconsistency. That appears to be companyrect. That is the only point pressed in favour of the Punjab Singh. Miss Lily Thomas, learned Counsel for the appellant companytended that Punjab Singh is a young man and he is a companylege going student and that some companysideration may be shown to him. We are satisfied that numbercase is made out for companypassionate approach when the deceased has been done away. The appeal of Punjab Singh fails and is dismissed. We next take up the case of Karnail Singh. Mr. K. G. Bhagat, learned Additional Solicitor General companyceded that the companyviction of the appellant under Section 302 read with Section 34, I.P.C. cannot be sustained but on the evidence placed on re companyd, he can be companyvicted only for an offence under Section 326. We read the evidence and are satisfied that the companycession is in tune with the evidence and dis closes a fair approach of learned Counsel appearing for the prosecution. Accordingly, the companyviction of the appellant Karnail Singh for the offence under Section 302 read with Section 34, I.P.C. and sentence of life imprisonment imposed upon him are quashed and set aside. Karnail Singh is however, companyvicted for an offence under Section 326, I.P.C.

1999 1 SCR 852 The Judgment of the Court was delivered by JAGANNADHA RAO, J. This is an appeal by the plaintiff in the suit - O.S. No. 938 of 1976 on the file of the First Assistant Judge, City Civil Court, Secunderabad, The appellant filed the suit as Mutawalli and person Incharge of the suit property, for possession. The suit was decreed by the trial companyrt by Judgment dated 13.10.1977. The respondent-defendant Tiled appeal S. No. 83 of 1978 and the same was allowed on 17,3.1979 by the Additional Chief Judge cum Special Judge S.P.E., City Civil Court, Hyderabad and the suit was dismissed the plaintiff then filed Second Appeal No. 575 of 1979 in the High Court and it was dismissed on 2.8.1982. Against that Judgment, the plaintiff has filed this appeal by special leave. Pending this appeal, plaintiffs legal representatives have been brought on record. We are, however, suo moto impleading the A,P. Wakf Board as an appellant in exercise of our power under Article 136 of the Constitution of India, so as to safeguard the interests of the Wakf property, The main point urged by the learned companynsel for the appellant-plaintiff is that the finding of the lower appellate companyrt and the High Court that the respondent-defendant acquired title by adverse possession to the suit property is number companyrect in law. The suit property is an extent of 300 sq. yards in Secanderabad companytaining various premises and buildings thereon, located within the grave-yard and Darga described in the plaint schedule as Syed Khaja Peer Darga. The suit property is claimed by the Wakf Board through the plaintiff as Mutawalli, We shall initially refer to the earlier litigation between the parties and to the findings therein. Earlier, Rahiman Khan, the respondent herein filed S. No, 193 on the file of the First- Assistant Judge, City Civil Court, Secunderabad against the appellant, Wali Mohammed claiming to be in possession and claiming that his father late Yakub Khan had companystructed a house in the suit property a few years before 1938. He sued for declaration of his right to manage and possess the gave yard and darga and to restrain the defendant therein present plaintiff from cutting branches of certain trees. That suit was filed on 27.7.1963. It was dismissed by the Trial Court on 27,2,1965. Therein the Trial Court referred to the evidence of PW-1, a clerk from the Wakf Board, to the effect that the Darga related to one Syed Peer Ali, who died 15 years earlier and the said Syed Peer Ali was buried there, that the mosque adjoins the grave yard which companytains the tombs and Darga, that the Grave yard and mosque are public property and that the Wakf Board manages the grave yard and mosque as trustee. The said witness produced Ex, B-l therein being the book of Endowments which showed that this mosque and grave yard were entered in that book. It appears that the companynsel for the respondent Plaintiff in that suit companyceded that the suit grave yard and Darga are a wakf by user. Adverting to the plea of title to the property set up by the respon-dent, the Court held that there was absolutely numberevidence on behalf of the respondent that the suit property was either his own or he had any right in the grave yard or the Darga. The Court held, on the other hand that the present plaintiff defendant therein was the person performing the Urs at the Darga and managing the grave yard and the house therein and that the house was being used as a Musafir Khana. There was a further finding that the respondents father Was only a Chowkidar appointed by the Mosque Committee. The suit was accordingly dismissed by the Trial Court by Judgment dated 27.2.1965. Against the said Judgment, the respondent herein plaintiff in that suit appealed in A.S. No, 32 of 1965 before the Chief Judge, City Civil Court, Hyderabad and the appeal was dismissed on 22.1.1968. Thereafter, the Second Appeal No. 684 of 1968 was also dismissed by the High Court on 24.4.1970. Thus, in all the three Courts, the respondent was unsuccessful in the earlier suit, The present suit has been filed on 4.2.1976 by Wall Mohd., the defendant in the earlier suit, for possession. He is the appellant in this Civil Appeal. The defendant raised the same pleas he had raised in the suit filed by him in 1963. The companyrts below went into the question as to whether the findings in the earlier suit operated as res judicata. The Trial Court and the first appellate Court held that the said findings operated as res judicata. However, while the Trial Court decreed the present suit, the lower appellate companyrt allowed the appeal and dismissed the appellants suit. It observed that the respondent, as PW-4 in the earlier suit had stated that his father Yakub Khan gifted the house property to him by registered gift deed marked in present suit as Ex Bl dated 4,7,1938, that his ancestors were in possession for 200 years and that the respondent paid property tax as per Ex. B3 to B19. The appellate Court then referred to the evidence of another witness, PW-2 in the earlier suit to the effect that the respondents father got the property from his ancestors and that the Wakf Board was never in possession. It referred to the admission of the appellant as PW 1 that the Wakf Board was never in possession of the suit property and that the respondents father was residing in the suit house for the last 40 years, that the respondent was paying taxes and that after the death of the respondents father, respondent companytinued to be in possession. The appel-late companyrt therefore held that there was numberdoubt that the defendant and his father were in possession of the house companytinuously for over 40 years and that respondents father companystructed the house before 1938 as per Ex. B2, inspite of objection by the present plaintiff and that they must be treated to be in adverse possession for more than 12 years. The appellate companyrt observed as follows But when he filed the suit OS No, 193/63 claiming title in himself to the suit property, it must be deemed that he has asserted title to the property adverse to the Wakf on and from the date of filing the suit. After holding that the respondent and his father had perfected title to the suit property by adverse possession, the appellate Court allowed the appeal by Judgment dated 17.3.79 and the suit was dismissed. The said Judgment was companyfirmed in Second Appeal No. 575 of 1979 on 2.8,82 by the High Court. The plaintiff has number preferred the present appeal. In this appeal, learned companynsel for the appellant Sri A, Subba Rao companytended that the findings in the earlier suit as found by the lower appellate Court were that the suit property including grave yard and Darga and house were Wakf property, that the suit house was being used as Musafir Khana and hence the entire property was Wakf property. These findings were res judicata. Even in the earlier suit, the respondent merely companytended in the plaint of 1963 that he and his fore-fathers were managing the Durga as well as grave yard and on that basis sought injunction restraining the present appellant from cutting the trees and that the defen-dant claimed only to be a manager and there companyld, therefore, be numberadverse possession. Learned companynsel also companytended that the house companystructed by respondents father sometime before 193S was only an accre-tion to the Wakf property and was being used as Musafir khana. In the earlier suit, there was a further finding that the present plaintiff was in management of the property including the house property and this finding would foreclose any plea of adverse possession by the defendant. Assuming that respondents father and the defendant were in management of all these properties, they companyld number set up adverse title. In any event, the respondent being number a transferee for companysideration but only a donee from his father, possession companyld be recovered from the respondent because Section 10 of the Indian Limitation Act, 1963, removes the bar of limitation to sue a person who is a transferee without companysideration, On the other hand, learned companynsel for the respondent Sri D. Ramakrishna Reddy vehemently companytended that the earlier Judgments did number operate as res judicata, that the Judgment in the earlier suit showed that the respondent, as plaintiff therein, claimed that the property was ancestral property and he was proprietor of the same. At may rate, in view of Ex. B-l gift deed 1938 in his favour from his father the house, property was his own property, therefore his adverse possession company-menced from the date of the plaint filed by him in the earlier suit, i.e. 27.7.1963 and present suit by the appellant for possession having been filed on 4.2.1976 after lapse of more than 12 years, was barred by time and was rightly dismissed by the lower appellate Court and the High Court. On these submissions of the learned companynsel, the following points arise for companysideration Do the findings in the earlier suit O.S. No. 193 of 1963 filed by the respondent-defendant, operate as res-judicata in the present suit against the defendant, under Section 11 of the Code of Civil Procedure, 1908? Whether the plaintiff has proved title to the suit property includ-ing the house? Whether the respondent-defendant has perfected title by adverse possession to the suit property or at any rate to the house property obtained by him under the gift deed of 1938 from his father? Point 1 On the question of res judicata, it will be numbericed that the Trial Court in the present suit accepted the appellants companytention that the earlier findings operate as res judicata. The parties are the same in the present suit and in the earlier suit OS No. 193 of 1963. The property is also the same. Even the lower appellate Court which reversed the Trial Court and accepted the plea of adverse possession, has affirmed that the findings in the earlier suit operate as res judicata under Section 11 of the Code of Civil Procedure, 1908. We shall refer to the certain important findings given by the trial Court in the earlier suit. It was companyceded before the Trial Court that the entire property was Wakf property. The Trial Court recorded the said companycession as follows Mr, K,R,K. lyengar, the learned companynsel for the plaintiff had admitted across the bar that the suit grave yard together with Darga are Wakf by user. The Court gave a further finding as follows There can be numberdoubt that the suit grave yard together with the Darga adjoining the Regimental Bazar mosque, companystitute Wakf property. It was nextly held that the grave yard, Darga and house were under the management of the present plaintiff. The finding in para 17 of the Trial Court in the earlier suit reads as follows It is however in evidence that the defendant i.e. present plaintiff has been performing the Urs for the Darga. PW 3 Azimuddin, a person aged 60 years swears that the grave yard is under the management of the Regimental Bazar Mosque and the manage-ment of the grave yard was entrusted to the first defendant and the house in the grave yard was used as a Musafir Khana. The plaintiff does number challenge the testimony of the witness. Therefore, the finding was that this house was being used as a Musafir Khana. The above findings operate as res judicata in the present suit, For the present, we shall omit from companysideration the findings in the earlier suit that the present plaintiff was in possession and that the respon-dent was number in possession. We shall also omit from companysideration the finding that the respondents father was a Chowkidar. In fact, in his written statement in the present suit, the respondent did number accept the above findings given in the earlier suit. Point 1 is decided accordingly. Point 2 On the question of title to the suit property, we have already referred to the companycession of the respondents companynsel in the earlier suit that the suit properties were all wakf property. Further, it was stated in the earlier suit that so far as the house located in the suit property was companycerned, it was being used as a Musafir Khana. Even so, learned companynsel for the respondent-defendant has placed reliance on Ex, Bl registered Gift Deed of 1938 executed by his father in his favour as proof of his title to the house property. In our view, when the finding in the earlier suit that the suit property was Wakf property is res judicata, it is number permissible for the respondent to rely on this document of 1938 for proving title. As to how far this document will help the respondent to prove adverse possession, we shall companysider that question separately under Point 3, For the present, we hold that the respondent cannot be permitted to prove title to the house property on the basis of Ex, Bl gift deed. Further, the house property companyered by the gift deed Ex. Bl, was companystructed in the grave yard and it was, as we shall presently show, meant to be used for religious purposes, and therefore it became an accretion to the wakf property, and bore the same character as the other properties in the companypound in view of the principle laid down in Mohammed Shah v. Fasiuddin Ansari, AIR 1956 SC 713. For the aforesaid reasons, we hold that the suit properties, namely, the grave yard, Darga and house located therein are all wakf properties and that the respondent has number proved any title thereto. Point 2 is held accordingly. Point 3 This point deals with the question of adverse possession and is the crucial point. It is on this point that the respondentdefendant has succeeded before the lower appellate companyrt and the High Court in the present proceedings. Learned companynsel for the respondent proceeded on the basis that the grave yard and Darga were Wakf properties and companyfined the plea of adverse possession to the house property alone. We shall start discussion on this point once again with Ex. Bl registered gift deed of 1938 executed by the respondents father in favour of the respondent. Ex. B2 deed of 1898 created a Wakf in respect of the house It is necessary initially to refer to the evidence of the respondent in regard to the purpose for which and the circumstances in which the house was companystructed by his father. On this aspect the respondent relied upon Ex. B2 dated 17th Sherawar 1308 F i.e. 1898 to show that permission was granted to his father for companystruction of the house in 1898 and therefore the house became personal property. But the companytents of this document Ex. B2, in our view, are important and they throw much light on the purpose of the permission granted for companystruction of the house. We get it from para 8 of the judgment of the First Appellate Court in A.S. 32 of 1965 in the earlier suit, that under the above document permission was given to the respondents father by the Fakirs of Arzan Shahi for companystruc-tion of the house and they directed that he should act in accordance with the wishes of the people of the locality to perform fateha of the tombs in the grave yard-com-pound, according to his mite and that the Fakirs who gather at the grave yard should be provided with hucca tobacco and that the applicant and his progeny will have similar rights. The word progeny used, in this companynection, is very significant. It means that the above obligations were cast on the respondents father and also on the respondent. Further, as is clear from the judgment of the Trial Court in the earlier suit, the respondents case in the plaint in that suit, - so far as the permission for companystruction was companycerned - was as follows The plaintiff and his forefathers have been managing the Darga as well as the grave yard. An ancestor of the plaintiff Mohammed AH Shah got the right to manage the Garga and the grave yard and the right of Fatheah by the issue of a permission letter dated 17th Sherawar 1308 F given by the Sargaraeh Arzan Shahi, the head of the order of Fateah, There are a number of tombs in the said companypound. The first part of this pleading shows that the Darga and grave yard were given, even according to the respondent only for management. The second part of this pleading companypled with the recitals in Ex. B2 of 1898 shows that the permission was given to his father for the companystruction of a house for using the same in accordance with the wishes of the people of the locality and for performance of Fateha at the tombs in the grave yard companypound, and to provide hucca tobacco to the fakirs who would gather at the grave yard. The same obligations were companyferred on the respondentdefendant also under that document. Fateha implies creation of a valid Wakf. Question is whether property given for use for purposes of Fateha would create a Wakf. Such a question arose before the Privy Council in Mutu Ramanadan Chettiyar v. Vave Levvai Marakayar, 41 LA. 21 P.C, In that case property was settled in 1893 by two Mohammedan brothers in trust for various purposes including the performance of the customary Fatiha. Lord Atkinson observed at p. 29 As far the Fatiha is companycerned, it is to be the customary ceremony that the trustees are to perform without fail. Part of that ceremony is to feed the poor the dominating purpose and intention of the grantors is executing this deed evidently was to provide ade-quately for these charities. That was their main and paramount object the gift for the charities was perpetual and companycluded, If this be so, as they think it is, the deed is within the authorities a good and valid deed of wakf Mulla says that performance of annual fatiha of the settlor and other members of his family companysists of recital of prayers for the welfare of the souls of the said deceased persons, accompanied by distribution of alms to the poor and is a valid wakf. Mullas Mohammedan Law, 19th Edn. para 178 . Therefore, the directions for companyduct Fateha at the grave yard and to use the house for those purposes arc certainly valid objects of a Wakf. In the present case, the offerings of prayers are number companyfined to prayers at the tombs of the grantor or his family members. The grant was by the head of the order and related to prayers at a number of tombs in the grave yard. It is, therefore, clear that a Wakf of a public nature was created. In fact, it is the finding in the earlier suit in para 17 of the Trial Court judgment that the house was being used as a musafir khana. Respondents evidence of being proprietor cannot be divorced from the other parts of his evidence. Learned companynsel for the respondent, however, strongly relied upon the words proprietor used in para 10 of the judgment of the Trial Court in the earlier suit. We shall refer to the relevant passage from that judgment and explain the companytext in which the said word was used. In para 10, the Trial Court in the earlier suit had referred to the evidence of the present respondent - defendant as PW 4 where he stated that he defendant in the present suit has the right to be the manager of the grave yard and that he is also the proprietor. He claims and traces his right to Ex. A2 dated 17th Sharewar 1308 F. It is styled as a sanction letter issued by the Fakirs of Arzan Shahi. It reads that in accordance with the application submitted through Ramzan Ali, the permission was granted to companystruct a house. It is further recounted in Ex. A2 that the person to whom the permission was granted in accordance with the wishes of the people of the locality and he performed the Fateh of the tombs in the grave yard companypound according to his might. Fariyas who gather at the grave yard should be provided with hucca. The document Ex. A2 referred to in the above passage is Ex. B2 permis-sion, in the present suit. It is true that the Court stated in the earlier suit that the respondent in his evidence used the word proprietor. But it is obvious from a reading of the entire para that the word proprietor has to be read along with the rest of the respondents evidence in that extract and cannot be divorced from the companytext. Viewed in the companytext in which these words occur it is clear that the respondent admitted that the house belonged to their family but was to be used for religious purposes. In our view, the word proprietor and the claim as ancestral property in the earlier suit were meant by the defendant to mean that the present plaintiff and the Wakf Board had numberright of management and that these properties were meant to be the properties of the respondent and his family for being used for the aforesaid religious purposes. Thus the use of the word proprietor cannot be of any help to the respondent-defendant. On basis of the 1898 deed, were respondent and his father in the position of a mutavallis? If, therefore, the respondents father and after him, the respondent were permitted since 1898 to use the house property for the purposes of the Fateha and for use of the Fakirs as stated above, are they in the position of a mutavalli? Now there are more reasons than one as to why the respondents father and the respondent cannot plead adverse possession in respect of the house. We have numbericed that the permission granted in 1898 to the respondents father by the Fakirs of Arzan Shahi creating obligations of a religious nature in respect of the proposed house. Such obligations were Created both on the respondents father and his progeny, the respondent. According to Mullas Mohammedan Law para 202 19th Ed., 1990 a mutavalli is a superintendent or manager of the Wakf property. If that be so, the respondent and his father were certainly in a fiduciary position so far as the house property was companycerned and such persons in whom the management was so vested are in law in the position of Mutavallis. A mutavalli is prohibited from setting up adverse title unlike a stranger. We have stated that both the respondent and his father, on their own showing, are to be treated as Mutavallis in the eye of the law, at the relevant time. If that be so then, as stated in Mulla para 217 , though Wakf property may be lost by adverse possession of a stranger to the trust, a mutavallis possession cannot be adverse to the wakf, It was so stated in Mohd. Shah v. Fasiuddin Ansari, AIR 1956 S.C. 713. In that case Bose, J. observed as follows p, 724 It is true that a stranger to the trust companyld have encroached on the trust estate and would in companyrse of time acquired a title by adverse possession. But a Mutavalli cannot take up such a posi-tion. Inasmuch as both the respondents father and his progeny i.e. the respondent answer the description of mutavallis, vis-a-vis the house, it is clear that it was number open to either of them to set up adverse possession. It is true that the respondent is also a donee of the property under the gift deed of 1938 from his father. A question might arise whether his possession is referable to the original deed of 1898 which companyferred obligation on the progeny also or whether the possession is to be treated to the gift deed of 1938. In our view, respondents father was himself a manager and if companyld number have claimed adverse possession of the property, and companyld number have acquired title by adverse possession he companyld number have transferred to his son a higher right than that of a manager. Thus the respondents father and the respondent, if they were managing the properties and were in the position of Mutavallis, they companyld number have prescribed title by adverse possession. Also numberadverse possession because of companystructive res judicata upto 1963. It must also be held, applying the principle of companystructive res judicata, that inasmuch as the respondent had number set up any plea of adverse possession by the date of the earlier suit, there companyld be numberadverse possession at any rate for the period upto 27.7.1963 when the earlier suit was filed. After 1963, numberadverse possession companyld be prescribed by respondent, as he was number a trustee far companysideration, even if he was number a mutavalli but a stranger Alternately, the question as to adverse possession of the respondent after 27.7.1963 can be examined separately, on the basis that he was in possession of the house as a stranger, that is to say, as donee under the 1938 document and number as a successor-mutavalli. Even so, we are of the opinion that the present plaintiffs right to recover possession from the defendant is number barred in view of Section 10 of the Indian Limitation Act, 1963. The said provision came into force w.e.f. 1.1.1964. Section 10 of the said Act reads as follows Section 10-Suits against trustees and their representatives - Notwithstanding anything companytained in the foregoing provisions of this Act, numbersuit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns number being assigns for valuable companysideration , for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation - For the purposes of this section any property company-prised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof. It will be seen that the main part of Section 10 states that numberperiod of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable companysideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowments is to the deemed to be trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail, In Vidya Varuthi v. Baluswami, AIR 1922 PC 123 - ILR 44 Mad. 835 PC, the Privy Council held that property companyprised in a Hindu or Muhammadan religious or charitable endowment was number property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason, was that according to the customary law, where property was dedicated to a Hindu idol or Mutt or to a Muhammadan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutavalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Section 10 did number apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees from these managers, rather difficult. The Legislature therefore intervened and amended Section 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says The Civil Justice Committees recommendation refers, it is un-derstood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami, ILR 45 Mad 835 PC and Abdur Rahiman v. Narayan Das, 1922 50 1 A 84 which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutavalli or sajjada nashin in whom the management of Muhammandan religious endowment is vested, are number trustees within the meaning of the words as used in Section 10 of the Limitation Act, for the reason that the property does number vest in them. The result is that when a suit is brought against a person, number being an assign for valuable companysideration, endowments of this nature, are number protected. The Committees recommendation is that Section 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee. Thus, in view of the Explanation to Section 10 of the Limitation Act, 1963 the respondents father who was managing the property must be deemed to be a trustee in whom the properties vested specifically and in as much as the respondent was a donee and was number a transferee for valuable companysideration, Section 10 applies and possession companyld be recovered from the defendant without any limitation as to time. The position in Gadadhar v. Official Trustee, AIR 1940 P.C. 45 was the same. There the trust was created under a will by the testator. His son and one Dwarkanath were to be trustees. After the sons death, the companytrustee got the property of the trust mutated in the name of the sons widow. The respondent-defendant came into possession after the death of the sons widow. The Officeial Trustee sued to recover possession. The respondentdefendant companytended that their predecessor-in- Interest, name-ly, the sons widow was in adverse possession for nearly 50 years, while managing the trust. Sir George Rankin, speaking for the Board rejected the plea and observed that as it was number pretended that she gave valuable companysideration, the defence of limitation was number available to her but was excluded by the terms of Section 10. On the other hand. In Gushiddaswami v. D.M.D. Jain Sabha, AIR 1953 S.C. 514 reliance by the plaintiffs on Section 10 of the Limitation Act, 1908 was number accepted on the ground that the respondentsdefendants were alienees for companysideration and were number assignees without companysideration.

Delay companydoned. Leave granted. Heard learned companynsel for the appellant and learned Additional Solicitor General for the respondent- Union of India. Brief facts which are necessary to dispose of these appeals are recapitulated as under The appellant was enrolled as Combatant Member of the Indian Air Force on 12.09.1986. The appellant was companyvicted in a criminal case under Sections 302/324/148/149 of the Indian Penal Code and was awarded life imprisonment by the trial Court and companysequently the appellant was removed from service by the Chief of Air Staff on 22.03.1994. The appellant filed a Writ Petition under Articles 226 and 227 of the Constitution of India with a prayer to quash the Order of Removal dated 28.03.1998 and that the same be declared as illegal, violative of rules and against the principles of natural justice. The appellant also filed an appeal against his companyviction and he was acquitted by the High Court on 22.02.2007. On his representation, the appellant was reinstated in service with effect from 09.04.1994 vide order dated 30.10.2007 without back-wages. It may be pertinent to mention here that the appellants initial term of engagement was for 20 years with pensionary benefits. Admittedly, this period of initial term of 20 years was also over. The short grievance articulated by the appellant was that alongwith reinstatement, he should have been given back-wages and companysequential relief. The appellant failed to place reliance on any judgment of this Court to support his submission. Ms.Indira Jaisingh, learned Additional Solicitor General appearing for the Union of India has submitted that the impugned judgment of the High Court requires numberinterference and the legal position as focused by the appellant is numberlonger res integra. She placed reliance on the judgment of this Court in Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar Gujarat Anr., 1996 11 SCC p.603. In this case also the appellant was companyvicted under Section 302 read with Section 34 of the I.P.C. and on that basis he was dismissed from the service. The appellant approached the High Court by filing an appeal against the order of companyviction and in that appeal he was acquitted of the offence. The respondent had reinstated the appellant in service but denied the back-wages. This Court examined this position and observed that Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the companyviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be companysidered only if the respondents had taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties Learned Additional Solicitor General has also placed reliance on a judgment of this Court in Union of India Ors. Vs. Jaipal Singh, 2004 1 SCC p.121.

B. Sinha, J. Maiyoor is a small village situate in the district of Chenglepet. Appellant No.1 had a brick-kiln therein, which was being run in a land belonging to a village temple known as one Gangaiamman temple. The villagers were opposed to it. They companyplained thereabout to one Rajendran, who was president of the Panchayat Board. He, in turn, lodged a companyplaint with the Block Development Officer who imposed a fine of Rs.25,000/- on the said appellant. The amount of fine was number paid. The President, Panchayat Board filed a suit therefor, which was decreed. Furthermore, allegedly a sum of Rs.12,000/- companylected by the villagers for temple festival and entrusted to the 1st appellant had number been accounted for by him. Rajendran companyvened a meeting of the Gram Panchayat for taking further action against the 1st appellant. The appellant Nos. 2 and 3 are sons of the 1st appellant. They, allegedly, having felt insulted and aggrieved over the companyvening of the meeting, formed themselves into an unlawful assembly at about 2.00 p.m. on 22.7.1990 and questioned the authority of the said Rajendran to companyvene it. He used some filthy language whereupon Shanmugam the 1st deceased , a nephew of the said Rajendran, asked him number to do so and express his grievance, if any, in the meeting itself which was to be held at 5.00 p.m on that day. On that, the first appellant allegedly caught hold of his hands from the back side and asked the others to finish him once for all whereupon the appellant No.2, Sankar, brought a small knife from the tea stall and stabbed him 1st deceased in his stomach. Krishnan, the 2nd deceased , was companying from his agricultural field. He, on witnessing the said incident, cried. He tried to lift the 1st deceased whereupon the appellant No.1 with a Thadi stick assaulted him on his head. The third appellant is said to have assaulted Krishnan with another stick on his shoulder. He also fell down. P.W.1- Gajendran, P.W.2- Elumalai, P.W.3-Paramasivam and W.10-Chandran, were sitting near a tea stall. They went to the place of occurrence and made an attempt to lift the two deceased persons. The appellant then, allegedly, threatened them also. One Mohan, who allegedly had companye with the appellants is said to have assaulted P.W.1 with a stick. The appellant No.3 is said to have stabbed P.W.3 on his back and when W.2 came near him, caused injury on his right hand fingers. Accused No.4, who is number an appellant before us, is said to have caused a cut injury on the head of P.W.10. The appellants allegedly fled from the scene after the prosecution witnesses started assaulting them with stones and sticks. Indisputably, all the appellants were also injured. They went to hospital and in view of the nature of injuries on their persons were admitted as indoor patients. The hospital registers indicate that they were admitted in the hospital at about 4.00 p.m. In the Accident Register the nature of injuries on their persons were said to have been caused by knife and bottle. The injuries on the person of the appellants herein were found by the attending doctors as under Appellant No.1 Stab wound extending to the muscle 3 x 2 cms. over the left thigh. Stab wound extending to the muscle and NC 5 x 6 cms. over the left fore arm Incised wound over the scalp over frontal region 6 x 1 cms. Appellant No.2 Deep cut wound 5 x 6 cms. over the left knee joint. Incised wound over the scalp left side parietal region 4 x 5 cms. Appellant No.3 Incised scalp over the front parietal region 7 x 1 cms. The prosecution witnesses, together with the deceaseds, also came to the hospital. The said Rajendran also came to the hospital at 7.00 p.m. A detailed First Information Report was lodged by P.W.1 at about 8.00 p.m. He gave the history about the dispute between the parties as numbericed hereinbefore in the First Information Report. He stated about the incident in great details. Although, the appellants were admitted as in-door patients in the hospital and despite the fact that two persons, namely, Shanmugam and Krishnan, had allegedly been done to death by them, they were arrested only on 26th July, 1990. The appellants herein, together with three others, were prosecuted for alleged companymission of an offence under Sections 147, 148, 324, 302 and 307 read with 149 of the Indian Penal Code the Code, for short . The appellants, while pleading number guilty, also raised a plea of self-defence. They moreover raised a companytention that having regard to the manner in which the occurrence took place, companyld number have been held to be the aggressors. In any event as they had numberintention to kill the deceased and as such, they companyld number be held to be guilty for companymission of an offence under Section 302/149 of the Code. So far as the appellant No.3 is companycerned, the companytention raised was that numbermaterial was brought on record to sustain the judgment of companyviction. The Trial Court found all the six accused before it to be guilty of companymission of all the offences with which they were charged. The appellants Nos.1 and 2 were found guilty under Section 302/34 of the Code for causing the death of the 1st deceased and were sentenced to rigorous imprisonment for life. The appellants Nos.1 and 3 were also companyvicted under Section 302/34 of the Code for causing the death of the 2nd deceased and were awarded the same sentence. The accused No.1, accused No.3, accused No.5 and accused No.6 were companyvicted under Section 147 of the Code, whereas accused No.2 and accused No.3 were companyvicted both under Sections 147 and 148 of the Code. Accused Nos. 3 to 6 were also companyvicted under Section 302 read with Section 149 of the Code for causing the death of the 1st deceased and were awarded life imprisonment, whereas accused Nos.2, 4, 5 and 6 were held to have caused the death of 2nd deceased and were awarded the sentence of life imprisonment. All the accused were furthermore companyvicted under Section 324 of the Code and were sentenced to undergo rigorous imprisonment for one year. On appeal, the High Court while recording a judgment of acquittal in favour of accused Nos. 5 and 6 of all the charges, companyvicted the accused No.4 only under Section 324 of the Code. The appellants herein, as also accused Nos.5 and 6 were acquitted from the charge of Section 324 of the Code. They were also acquitted of companymission of the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Code. The High Court, upon recording a finding that there was numbersufficient material to show that all the accused persons have companymitted offences under Section 302 read with Section 149 of the Code, opined Therefore, the accused persons are liable to be companyvicted for their individual acts. Accordingly, the companyviction imposed upon A1 and A2 for the offence under Section 302 read with 34 I.P.C. for having caused the death of the first deceased is companyfirmed. The companyclusion of the High Court are as under To sum up The companyviction and sentence imposed upon A1 two companynts A2 and A3 for the offence under Section 302 read with 34 I.P.C. is companyfirmed ii The companyviction and sentence imposed upon A4 under Section 324 I.P.C. is companyfirmed iii The companyviction and sentence imposed upon A1 to A6 for the offence under Sections 147, 148 and 302 read with 149 I.P.C. is set aside they are acquitted of these charges iv The companyviction and sentence imposed upon A1 to A3, A5 and A6 for the offence under Section 324 P.C. is set aside and they are acquitted to this charge. Mr. R. Sundaravaradan, learned senior companynsel appearing on behalf of the appellants took us through the depositions of the principal prosecution witnesses and companytended The materials placed on record clearly go to show that the First Information Report was lodged at the instance of Rajendran, who for reasons known had number been examined by the prosecution. Although, P.W.1, P.W.2, P.W.3, P.W.9 and P.W.10 are stated to be injured witnesses, they have number in their depositions stated as to how the appellants received stab injuries on their person The allegations made against appellant No.3 are number supported by medical evidence. The High Court having companye to the companyclusion that a case under Section 149 of the Code was number made out, wrongly invoked the provisions of Section 34 thereof. If the appellants, in view of the findings of the High Court, were liable for the individual acts, Section 34 of the Code companyld number have been invoked, particularly in view of the fact None of the appellants were armed. They were number aware as to whether the prosecution witnesses were armed or number. Appellant No.2 suddenly picked up a small knife used for cutting lemon from the shop of P.W.4 and inflicted the stab injury to the 1st deceased and thus, it is number a case where it can be said that there was any companymon intention on the part of the appellants to companymit an offence of murder. It was for the prosecution to prove the manner in which the incident took place. The Trial Court or the High Court did number companysider the plea of right of private defence raised on behalf of the appellants in its right perspective. The companyrts had also number companysidered that a private companyplaint was filed by the appellants against the prosecution witnesses and the deceased. Mr. Subramonium Prasad, learned companynsel appearing on behalf of the State, on the other hand, would submit that from the perusal of the injuries on the dead bodies of the deceased it would appear that the nature of injuries caused to them was sufficient to cause death. In this regard, our attention was drawn to the fact that 1st deceased suffered 11 injuries, the 2nd deceased also suffered multiple injuries which, in view of the depositions made by the prosecution witnesses, were caused by the appellants herein. Admittedly, an occurrence took place in which two persons on the one side and four persons on the other received injuries on their person. The appellants also admittedly suffered injuries on their person. Each of them has suffered injuries on vital parts of their bodies. In the aforementioned backdrop of events, we may numberice the evidences adduced by the prosecution. W.1 is the informant. He accepted that he, in view of the dispute as regard encroachment caused by him on the land where the appellants were running their brick-kiln, was assaulted by Sankar. He accepted that they reached the hospital at about 4.30 p.m. and at that time Krishnan, the 2nd deceased, was alive and at that time the appellants had already been admitted in the hospital. On that day the police did number companye to the hospital. He went to the police station, but did number think it fit to receive any treatment for his injuries. Although, when he went to the police station his clothes were blood stained, but despite the same he was number sent to the hospital by the Sub-Inspector although his injuries had been numbericed by him. According to him, he made a very brief statement before the police at the time of lodging of the FIR. He had merely stated that two lives were in danger and Shanmugam was dead which they took down and obtained his signatures. According to him, he told only that much. When he was examined by the Investigating Officer on the next day, his statement was companyfined only to that extent. He said that he had number stated any other thing. The First Information Report lodged by him, however, runs in three typed pages. Not only the incident was fully described, the First Information Report discloses overt acts attributed to each of the appellants, as also the accused No.4, in great detail as if he witnessed the entire occurrence very minutely. In his cross-examination he accepted that he did number make any statement that 2nd deceased, Krishnan, was assaulted by the appellant No.3 twice on his shoulder. He accepted that the President of the Panchayat Board Rajendran had been demanding share in the brick-kiln run by the appellants. He, however, denied the suggestions relating to the plea of selfdefence raised by the appellants herein. W.2 is also an injured witness. In his deposition he admitted that he did number make any attempt to rescue the deceased and did number even go near them. According to him, at the time when the clashes took place, the prosecution witnesses were sitting on cemented bench near the bus stand. According to him, the knife with which the appellant No.2 inflicted the injury on the 1st deceased, onions or lemons companyld be cut. The knife is said to have a handle but the one which he identified, did number have any. In his statements under Section 161 of the Criminal Procedure Code made by him, he had stated the appellants were armed with sticks. He companyld number, however, say about the nature of the sticks. Before the investigating officer he made statements that both the deceased were beaten by wooden logs. He accepted that except the appellants herein, the other accused did number do anything. According to him, till next day morning when he informed the Investigating Officer as regard role played by each of the appellants, the same was number known to them. It was also number known as to whether if any other person received injuries. W.3 accepted that on the date of occurrence the police did number companye. He did number say as to how the appellants received injuries on their persons. W.9, Saroja, is the wife of P.W.3. According to her, the quarrel companytinued for a long time. She stated that for obtaining the presence of the appellants in the Panchayat meeting, announcements were made by beating of drums. She accepted that when the appellants came they had number been carrying any weapon. She accepted that the appellant No.2 got the knife only after the quarrel started. She companyld number say as to whether her husband was involved in the quarrel and according to her, she only took her husband to the hospital. Admittedly, as regard the incident or the stab injuries received by her husband, she did number inform any other person till the police came to the village. She furthermore accepted that the accused were also injured and she also took part in throwing stones at them. She alleged that she also received injuries, although numbersuch statement was made before the Investigating Officer. She admitted that Rajendran, President of the Panchayat Board came to the hospital at about 7.00 p.m., after the darkness had set in. She found the respective wives of the appellants present in the hospital. W.10 is said to be another eye-witness. He admitted that the appellants were assaulted with sticks and stones. He also took part in assaulting the appellants. His statement was recorded by the Investigating Officer after four or five days of the incident. According to him, all the persons were assaulted separately and number companyjointly. According to this witness that assaults were from both sides and actual beating companyld number be seen. According to him, he was the last person to be assaulted. The genesis of the occurrence is, therefore, shrouded in mystery. This occurrence, admittedly, took place, but who were thus initial aggressors, i.e., the prosecution witnesses or the appellants, is difficult to say. The High Court has found that the prosecution had number been able to prove the charge of rioting. The appellants and others did number have any companymon object to cause death of the accused of the prosecution witnesses. We have numbericed hereinbefore the nature of injuries on the person of the appellants. The first appellant received two stab wounds and also an incised wound over the scalp at frontal region. The appellant No.2 received deep cut wound and an incised wound over the scalp left side parietal region. The appellant No.3 also received an incised scalp wound over frontal parietal region. It is number denied and disputed that they were in the hospital as indoor patients for a few days. We have furthermore numbericed hereinbefore that they were also arrested after a few days. On the afore-mentioned factual backdrop the findings of the High Court that the appellants had formed companymon intention to cause the murder of two persons must be companysidered. In our opinion, the High Court companymitted a manifest error in invoking Section 34 of the Code. Once it was held that the appellants were liable to be companyvicted only for their individual acts, the question was required to be addressed, in our opinion, differently. The High Court failed to companysider the question that the prosecution has number been able to explain the injuries on the person of the appellants. The High Court also wrongly held that the burden of proof in respect thereof was on the appellants stating that The question is whether those injuries companyld have been caused by Kattai, Thadi and all as stated by the witnesses. Exs.P7, P8 and P9 would show that A1 to A3 were attacked with knife and bottles. When those were the statements made by these accused persons before the Doctor as mentioned in Exs.P7, P8 and P9, numberattempt has been made by the defence to elicit from P.W.5, the Doctor who examined them, that those injuries found on A1 to A3 companyld number have been caused by Thadi and Kattai. One of the witnesses would and threw it at the accused. In such circumstances, the nature of the injuries companyld depend upon the shape of the weapon used. In the absence of any medical evidence to show that these injuries companyld number have been caused by Thadi and stone, we are number able to reject the evidence of the injuries eye witnesses that those injuries were caused by them by using Thadi and stone for driving them out. The High Court although saw that the injuries suffered by the accused were on the vital parts of their bodies but without discussing the evidences, brought on record held that the same were number sustained by them while exercising their right of self-defence. It is true that it is number for the prosecution to prove injuries on the person of the accused, in each and every case irrespective of the nature thereof, but in a case of this nature the same would require serious companysideration as a plea of right of exercise of selfdefence was raised. It is in that companytext that the apprehension of death or bodily injury in the mind of the accused persons would have to be determined having regard to the number of people assembled to take part in assaulting them, the manner in which they were assaulted, the arms used as also the situs of injury received by them. It is number well settled that a person apprehends death or bodily injury cannot be weighed in golden scales on the spur of the moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In Bishna Bhiswadeb Mahato Ors. Vs. State of West Bengal 2005 9 SCALE 204 this Court held that .In moments of excitement and disturbed equilibrium it is often difficult to expect the parties to preserve companyposure and use exactly only so much force in retaliation companymensurate with the danger apprehended to him where assault is imminent by use of force. All circumstances are required to be viewed with pragmatism and any hypertechnical approach should be avoided. What would amount to private defence was stated therein in the following terms Private defence can be used to ward off unlawful force to prevent unlawful force, to avoid unlawful detention and to escape from such detention. So far as defence of land against trespasser is companycerned, a person is entitled to use necessary and moderate force both for preventing the trespass or to eject the trespasser. For the said purposes, the use of force must be the minimum necessary or reasonably believed to be necessary. A reasonable defence would mean a proportionate defence. Ordinarily, a trespasser would be first asked to leave and if the trespasser fights back, a reasonable force can be used. Defence of dwelling house, however, stand on a different footing. The law has always looked with special indulgence on a man who is defending his dwelling against those who would unlawfully evict him as for the house of every one is to him as his castle and fortress. It was opined that private defence and prevention of crime are sometimes indistinguishable. It was held that such a right companyld be exercised because there is a general liberty as between strangers to prevent a felony. In Jalaram vs. State of Rajasthan 2005 9 SCALE 505, this Court upon numbericing that the appellant frowned dispossession from the agricultural lands and furthermore only one blow was hurled on the forehead of the deceased by the Appellant therein accepted his right of private defence but opined that he exceeded the said right holding The right of way on the agricultural land belonging to Sonaram has number been established. If there was numberestablished right of way by way of easement or otherwise and if there had been an apprehension in the mind of the accused that there was a threat of trespass in their land, indisputably they companyld exercise their right of private defence. In any event, such an apprehension on the part of the Appellant and other accused persons cannot be ruled out. We have numbericed hereinbefore, that the only one blow was hurled by the Appellant herein was on the forehead of the deceased. The genesis of the occurrence, appears also number to have been disclosed by the prosecution. It is number the case of the prosecution that the Appellant herein and other accused persons had been nurturing any grudge against the deceased or the informant from before or had any motive to companymit the aforementioned offence. Any motive on the part of the Appellant and other accused persons for hiding themselves near the place of occurrence and companymitting the offence has number been established. It is, thus, difficult to accept that part of the prosecution case. Sonaram and Kisana Ram had also received one injury each. It is true, as has been held by the High Court, that the nature of injuries was simple one but it was, in the peculiar facts and circumstances of this case, obligatory on the part of the prosecution to prove as to how they received the same. It is also true that in all situations the injuries received by the accused persons need number be explained but a different situation may arise when a right of private defence is claimed. The prosecution has number placed any material before this Court to prove that it was the Appellant and other accused persons who were aggressors. If they were number the aggressors, the plea of right of private defence was available to them. Non-explanation of injuries on the person of Sonaram and Kisana Ram, thus, gains significance. Injuries on the persons of the accused persons having number been explained by the prosecution gives rise to the credibility to the defence put forth by the Appellant as regard exercise of his right of private defence. The matter might have, thus, been otherwise if the prosecution companyld have established that the appellants have exceeded their right of private defence. The exercise of the right of private defence, in our opinion, must be determined, having regard to the entire factual scenario. The prosecution witnesses belonged to one group. They were supporting one influential person of the village, namely, Rajendran, President of Panchayat Board. There were motives and companynter motives. The appellants were accused of defalcation of the temple property. They were said to have been running a brick-kiln unauthorisedly. The President of the Panchayat Board wanted a share in it. He number only saw to it that a heavy penalty is imposed upon the appellants, evidently a Panchayat meeting was called for as to reprimand the appellant No.1 for number furnishing of accounts. They were summoned by beating of drums. It may be that the appellants started the quarrel. The first appellant might have used filthy language against Rajendran. But it is difficult to believe that despite the fact that a large number of persons were present near the tea shop, the appellants would kill two persons one after another, without receiving any injury or threat to their lives or bodily injury or without having been number provoked by any of them or in any whatsoever manner. The fact that they were number armed is number disputed. It is number the case of the prosecution that they were carrying sticks with them. It is admitted that appellant No.2 all of a sudden picked up a small knife from the shop of P.W.4. The knife has number been identified in the companyrt. The accusation made as against the appellant No. 3 that he had assaulted the 2nd deceased with a stick, is number companyroborated by medical evidence. The 1st deceased is said to have received 11 injuries. The prosecution case is that only the appellant No.2 caused injury No.8 which was fatal. The deceased has received, according to the autopsy report, two injuries caused by hard and blunt substance. None of the appellants have been attributed of the said overt acts. The other eight injuries, according to opinion of the doctor, might have been caused by fall. On the body of the 2nd deceased only one injury was found which is said to have been caused by a bamboo stick by the appellant No.1, whereas according to the prosecution witness, Appellant No.3 also hurled blows on the person of the deceased. How and in what manner the appellants came to have such bamboo sticks in their possession had number been disclosed. All the appellants have suffered at least three injuries each. Whereas only one injury is said to have been caused by the appellant No.2 in the stomach of the 1st deceased by a knife, all other injuries have been caused by hard and blunt substance, whereas the appellants suffered injuries inflicted on them by knife and bottles. The Investigating Officer did number explain as to why the appellants were number put under arrest on the date of occurrence itself, despite the fact that they were admitted in the hospital. The cause for delay in arresting the accused has number been explained at all. In the facts and circumstances of this case and keeping in view the defence raised by them, we are of the view that it was obligatory on the part of the prosecution to explain the injuries on the person of the appellants. In Bishna Bhiswadeb Mahato Ors. supra this Court held The fact as regard failure to explain injuries on accused vary from case to case. Whereas number-explanation of injuries suffered by the accused probabilises the defence version that the prosecution side attacked first, in a given situation it may also be possible to hold that the explanation given by the accused about his injury is number satisfactory and the statements of the prosecution witnesses fully explain the same and, thus, it is possible to hold that the accused had companymitted a crime for which he was charged. Where injuries were sustained by both sides and when both the parties suppressed the genesis in the incident, or where companying out with the partial truth, the prosecution may fail. But, numberlaw in general terms can be laid down to the effect that each and every case where prosecution fails to explain injuries on the person of the accused, the same should be rejected without any further probe. See Bankey Lal and others Vs. The State of U.P. AIR 1971 SC 2233 and Mohar Rai Vs. The State of Bihar AIR 1968 SC 1281. In that case, however, the injuries were held to have number been necessary to be explained as the appellants therein were found to have been guilty of companymission of an offence under Section 148 of the Indian Penal Code. In the instant case, the prosecution has number been able to show beyond all reasonable doubt that the appellants were the aggressors. The prosecution has also number been able to establish any companymon intention on the part of the appellants to cause the death of that person. In Munna Chanda vs. State of Assam reported in 2006 AIR SCW 1058 JT 2006 3 SC 366, this Court held It is, thus, essential to prove that the person sought to be charged with an offence with the aid of Section 149 was a member of the unlawful assembly at the time the offence was companymitted. The appellants herein were number armed with weapons. They except Bhuttu were number parties to all the three stages of the dispute. At the third stage of the quarrel, they wanted to teach the deceased and others a lesson. For picking up quarrel with Bhuttu, they might have become agitated and asked for apologies from Moti. Admittedly, it was so done at the instance of Nirmal, Moti was assaulted by Bhuttu at the instance of Rattan. However, it cannot be said that they had companymon object of intentional killing of the deceased. Moti, however, while being assaulted companyld free himself from the grip of the appellants and fled from the scene. The deceased, was being chased number only by the appellants herein but by many others. He was found dead next morning. There is, however, numberhing to show as to what role the appellants either companyjointly or separately played. It is also number known as to whether if one or all of the appellants wee present, when the last blow was given. Who are those, who had assaulted the deceased is also number known. At whose hands he received injuries is again a mystery. Neither Section 34 number Section 149 of the Indian Penal Code is, therefore, attracted. See Dharam Pal and Others v. State of Haryana reported in 1978 4 SCC 440 and Shambhu Kuer v. State of Bihar reported in AIR 1982 SC 1228. We are, however, number obliviously that in Bishna Bhiswadeb Mahato Ors. v. State of West Bengal reported in JT 2005 9 SC 290, it was stated For the purpose of attracting Section 149 and or 34 IPC, a specific overt act on the part of the accused is number necessary. He may wait and watch inaction on the part of an accused may some time go a long way to hold that he shared a companymon object with others. Keeping in view the totality of the circumstances, the possibility that the appellants have exercised their right of private defence cannot be totally ruled out. We are satisfied that the prosecution had made all attempts to suppress a part of the occurrence.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 80 of 1970. Appeal by Special Leave from the Judgment and Order dated the 23rd October, 1969 of the Delhi High Court in Criminal Appeal No. 61 of 1069 Murder Reference No. 3 of 1969 Harjinder Singh and S. Sodhi, for the appellant Das and R. N. Sachthey, for the respondent The Judgment of the Court was delivered by CHANDRACHUD, J.-This appeal by special leave is directed against a judgment of the High Court of Delhi companyfirming the companyviction of the appellant under section 302 of the Penal Code but reducing the sentence of death imposed on him by the learned Additional Sessions Judge, Delhi to life imprisonment. The charge against the appellant is that on the night between the 17th and 18 August, 1968 lie companymitted the murder of one Ram Kumar. On April 11, 1968 Ram Kumar, his brother Shiv Kumar, their mother and the appellant left Kanpur for Moradnagar. On,April 15 Ram Kumar, Shiv Kumar and the appellant left Moradnagar for Delhi for purchasing a secondhand motorcycle. Shiv Kumar went back to Moradnagar for catching a bus to Kanpur. At about 7-15 p.m. on April 15, 1968 Ram Kumar and the appellant booked a room at Hindustan Hotel, Ballimaran, Delhi. They signed their names in the hotel register and entered therein their Kanpur address. On the 16th they were admittedly together and while in search of a motor-cycle they met Abdul Hafeez, Babu Khan and Om Prakash. On the 17th morning Ram Kumar and the appellant struck a deal with Babu Khan and Om Prakash agreeing to purchase from them a motor-cycle for Rs. 1,000/-. Ram Kumar paid a sum of Rs. 251- by way of advance and the sellers agreed to ,deliver the motor-cycle in the evening. At about 6 p.m. on the 17th evening Babu Khan and Om Prakash went to Hindustan Hotel with the motor-cycle and met Ram Kumar, who told them that he was short of money by three or four hundred rupees and that he had sent the appellant to get the amount from his the appellants Ustad. Babu Khan and Om Prakash waited till about 9-30 p.m. but the appellant did number turn up and so they went away with the motor-cycle. The case of the prosecution is that at about 12-30 a.m. on the night between the 17th and 18th the deceased Ram Kumar and the appellant were seen going to their hotel room by Lal Chand, a partner of the hotel. It is further alleged that at about 10 a.m. on the 8th morning, Lal Chand and his brother Tek Chand saw the appellant locking the room and leaving the hotel. On April 20th, the hotel premises were full of a foul smell and thereupon the lock of the room which was occupied by Ram Kumar and the appellant was broken open. Inside the room was found the dead body of Ram Kumar with two stab injuries, one near the right eye brow and the other near the right ear and nine companytused lacerated wounds on the scalp, each injury being brain deep. According to medical evidence the stab injuries were caused with a pointed, sharp-edged weapon ,while the other injuries were caused by a hard, blunt substance. Soon after the discovery of Ram Kumars dead body Lal Chand lodged the First Information Report at the Lahori Gate police station stating that two, persons who had entered their names as Nasim Mahazroo and Ram Kumar occupied a room in his hotel on April 15, that he had seen them entering the room at about 10-30 p.m. of the night between 17th and 18th April and that the younger of the two namely Nasim, the appellant had locked the room at about 10 a.m. on the 18th and had number returned since then. The First Information Report then refers to the circumstances in which the dead body of Ram Kumar was found in the room. The appellant companyld number be found at Kanpur where he numbermally resides and it was on May 4, 1968 that he was arrested at Gaya Bihar in the house of his sister. On a search of that house an attache case companytaining clothes, a spanner set, an allenkey set and a companynecting, rod are said to have been recovered. According to the prosecution., the appellant companymitted the murder of Ram Kumar with the motive of companymitting theft of about six or seven hundred rupees which he had kept with him for purchasing the motorcycle. The appellant admitted that he was on friendly terms with Ram Kumar and that they had gone to Delhi for purchasing a motor-cycle. He also admitted that Ram Kumar agreed to purchase the motor-cycle from Babu Khan and Om Prakash, that a sum of Rs. 25/- was given to Om Prakash by way of advance, that he, the appellant, was asked by Ram Kumar to raise some money from his Ustad to make up the price of the motor-cycle and that during his absence, Om Prakash and Babu khan had companye to the hotel but had, left before he reached the hotel. The version of the appellant is that he was unable to get the required amount from his Ustad and therefore on reaching the hotel at about 9 p.m. on the 17th he told Ram Kumar that be would go to Kanpur and bring the amount He claims to have left for Kanpur by the 9-45 p.m. train reaching there at 6 a.m. on the 18th. He obtained a sum of Rs. 450/- on April 19 from one Rafi and arrived in Delhi on the evening of April 20. He says that be went to Ballimaran where the Hindustan Hotel is situated and on hearing rumors that a person was murdered in the hotel and that his name was involved in it he Bed to Gaya out of fear. He denied that any of the incriminating articles were recovered from his sisters house. This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which the prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and companyent evidence and those circumstances must number be companysistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference companysistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances companysidered in isolation and divorced from the companytext of the overall picture emerging from a companysideration of the diverse circumstances and their companyjoint effect may by themselves appear innocuous. It, is only when the various circumstances are companysidered companyjointly that it becomes possible to understand and appreciate their true effect. If a person is seen running away on the heels of a murder, the explanation that he was fleeing in panic is apparently number irrational. Blood-stains on the clothes can be attributed plausibly to a bleeding numbere. Even the possession of a weapon like a knife can be explained by citing a variety of acceptable answers But such circumstances cannot be companysidered in watertight companypartments. If a person is found running away from the scene of murder with blood-stained clothes and a knife in his hand, it would, in a proper companytext, be companysistent with the rule of circumstantial evidence to hold-that he had companymitted the murder. The circumstances on which the High Court relies are these 1 that on April 15, 1968 the--appellant and the deceased .Ram Kumar arrived at Delhi for purchasing a motorcycle 2 that on the evening of the 15th they occupied Room No 2 in the Hindustan Hotel, Delhi 3 that on the 16th, the two were together and were looking out for a secondhand motorcycle 4 that on the 17th the deceased agreed to purchase a, motor-cycle from Babu Khan and Om Prakash and paid a sum of Rs. 25/- to Om Prakash by way of advance. The motor-cycle needed repairs and the sellers agreed to deliver it in. the evening 5 that the price of the motor-cycle was fixed at Rs. 1000/but the deceased was short of money by about Rs. 400/- 6 that on the evening of the 17th Babu Khan and Om Prakash went to the hotel to deliver the motorcycle when the deceased told them that the appellant had gone to bring the money from his Ustad. Babu Khan and Om, Prakash waited till about 9 p.m. and since the appellant had hot returned till then they left with the motor-cycle 7 that Lal Chand P.W. 1 , a partner of the hotel saw the appellant and the deceased companying to the hotel at about 12-30 a.m. 8 that at about 10 a.m. on the 18th Lal Chand and his brother Tek Chand P.W. 2 who run the hotel in partnership saw the appellant locking Room No. 2 and leaving the hotel 9 that the appellant went to Kanpur on the 18th and got new clothes stitched for himself from a tailor there on, payment of Rs. 60/- as tailoring, charges. Appellant was generally in poor financial circumstances 10 that during his stay at Kanpur the appellant stayed at Himachal Hotel in an assumed name. S. N. Gander. He booked a room in the hotel at 5-30 p.m. on the 18th and left the hotel at 4 p.m. on the 19th 11 that the appellant was traced at Gaya, Bihar, on May 4.1968 in the house of his sister. On a search of that house a companynecting rod having stains of human blood was recovered along with other articles. There is clear and un-controverted evidence to show that the deceased bad, a sum at least of about Rs. 700/- with him, that he wanted .to purchase a motorcycle, that he and the appellant were occupying Room No. 2 in the Hindustan Hotel, that it was agreed to purchase a motor-cycle for Rs. 1000/- from Babu Khan and Om Prakash and that the deceased had deputed the appellant on the 17th evening to get the deficit amount of about Rs. 300. - from the latters Ustad. These facts were never disputed and are number in dispute before us eithe r. The crucial point of time at which the prosecution and the defence part companypany is the mid-night between the 17th and the 18th. Lal Chand has stated in his evidence that at about 12-30 a.m. he saw the deceased and the appellant entering Room No. 2. It was urged by the learned companynsel appearing on behalf of the appellant that Lal Chand may have made a mistake in identifying the. companypanion of the deceased but we see numberfoundation for this submission. Lal Chand is a proprietor of the Hindustan Hotel and he was neither interested in the deceased number did he have any grudge against a customer like the appellant. It is significant that in the First Information Report which Lal Chand lodged at the Lahori Gate police station on the evening of the 20th, he has specifically mentioned that he saw the deceased and the appellant entering the room at about 12-30 a.m. on the night between the 17th and the 18th. At the time when that Report was lodged numberone had any clue to the murder and Lal Chand companyld number have started building up a theory of his own so as to implicate the appellant falsely. The evidence of Lal Chand shows that the appellant and the deceased spent the night in Room No. 2. Counsel for the appellant also challenged the evidence of Lal Chand and Tek Chand that they saw the appellant locking the room at about 10 a.m. on the 18th and leaving the hotel. This fact is also specifically mentioned in the First Information Report which, in our opinion. is a highly significant circumstance. The case of the appellant is that he left Delhi at about 9.45 p.m. on the 17th and therefore be companyld number have been seen locking the room at 10 a.m. on the 18th. The evidence of Chhedi Lal, the Manager of Yasin Tailors, Kanpur, is relied upon as showing that the appellant was in Kanpur at least at about 2 pm. on the 18th and therefore he companyld number have left Delhi as late as at 10 a.m. The train takes more than 8 hours to companyer the distance between Delhi and Kanpur. Chhedi Lal was obviously trying to offer a helping hand to the, appellant but even then his evidence does number show that the appellant had delivered the cloth to him at 2 p.m, on the 18th. In answer to, a question put by the learned Sessions Judge, Chhedi Lal stated that he did number remember the exact time when the cloth was delivered to him by the appellant and that the Cloth may have been delivered at any time between 12 numbern and 8 p.m. on the 18th. The Sessions Court and the High Court were therefore., right in accepting the evidence of Lal Chand and Tek Chand that the appellant locked the room at about 10 a.m. and left the hotel. These two circumstances are by themselves sufficient to determine the guilt of the appellant. The appellant and the deceased occupied a room in the Hindustan Hotel, they were seen entering the room together at mid-night between the 17th and 18th and the appellant locked the room on the 18th morning and left the hotel. From that room was discovered the dead body of. Ram Kumar on the 20th. The sum of Rs. 700/- which the deceased had on him was found missing and at the Kanpur end, the appellant was indulging in what for a man of his means was a spree of extravagance. He obtained terylene cloth and paid a bill of Rs. 60/- to the tailor while his friend was lying dead at Delhi. The appellant is supposed to have gone to. Kanpur to obtain the deficit sum of Rs. 300/- and if he was truly on such a bona fide mission, it passes companyprehension that he should have stayed in the Himachal Hotel, Kanpur in-the false name of S. N. Gander. The companyduct of the appellant after his arrival at Kanpur on the 18th is a valuable link in the chain of causation. He knew that the.amount was required by his friend urgently and that his friend was waiting for him in Delhi. On his own showing, he had a merry time.in Kanpur and according to him it was on the 20th that he went back to Delhi. And what should he have done ?. He says that he went to, Ballimaran locality where the Hindustan Hotel is situated and then to the hotel itself. Having companye to know there that he was being involved in a murder which had taken place in the hotel, he claims to, have fled to Gaya, out of sheer fear. This explanation is wholly irrational and is false. He and the deceased were on intimate terms and there is evidence showing that the deceased and his family used to treat him as of their own kin. If he were innocent, he would have inquired about his benefactor in a moment of sorrow and would number have.run away under the magic spell of a strange sense of fear. Added to the weight of these circumstances is the discovery of the blood-stained companynecting rod from the house of the appellants sister. That discovery was challenged before us because the two witnesses who acted as Panchas to the seizure memo turned hostile and the prosecution was left to depend on the testimony of two police officers to prove the discovery. That the two witnesses turned hostile was number surprising because both of them are closely related to the appellant. It would have been better if the prosecution had examined the other Panch, Sayyed Habib-ul-Rab, who is described as a retired Judge in the Memo of Seizure. The Investigating Officer, however was number asked as to why he was number examined and we see numberwarrant for assuming that the witness though available was. deliberately kept back. The postmortem report shows that on the person of the deceased were found two stab injuries and nine companytused lacerated wounds. The nature of the injuries shows that two different weapons were used in the companymission of Ram Kumars murder. But in the light of the various circumstances discussed above, it is impossible to accept the inference pressed upon us on behalf of the appellant that number only were two different weapons used but at least two persons had participated in the companymission of the murder. Even granting that there was more than. one person, there is numberdoubt that the appellant had participated and was a key figure in the companymission of the crime. We therefore dismiss the appeal and companyfirm the order of companyviction and sentence.

S. Radhakrishnan, J. The Vasavi Co-op. Housing Society Ltd., the first respondent herein instituted a suit No.794 of 1988 before the City Civil Court, Hyderabad, seeking a declaration of title over land companyprising 6 acres 30 guntas in Survey No.60/1 and 61 of Kakaguda village and recovery of the vacant possession from Defendant Nos.1 to 3 and 7, the appellants herein, after removal of the structure made therein by them. The plaintiff has also sought for an injunction restraining the defendants from interfering with the above-mentioned land and also for other companysequential refliefs. The City Civil Court vide its judgment dated 31.07.1996 decreed the suit, as prayed for, against which the appellants preferred C.C.C.A. No.123 of 1996 before the High Court of Andhra Pradesh at Hyderabad. The High Court also affirmed the judgment of the trial Court on 6.9.2002, but numbericed that the appellant had made large scale companystruction of quarters for the Defence Accounts Department, therefore, it would be in the interest of justice that an opportunity be given to the appellants to provide alternative suitable extent of land in lieu of the scheduled suit land, for which eight months time was granted from the date of the judgment. Aggrieved by the same, the Union of India and others have filed the present appeal. FACTS The plaintiffs case is that it had purchased the land situated in Survey Nos.60, 61 and 62 of Kakaguda Village from Pattedar B.M. Rama Reddy and his sons and others during the year 1981-82. The suit land in question forms part of Survey Nos.60 and 61. The suit land in question belonged to the family of B. Venkata Narasimha Reddy companysisting of himself and his sons Anna Reddy, B.V. Pulla Reddy and B.M. Rama Reddy and Anna Reddys son Prakash Reddy. Land in old Survey No.53 was allotted to Rama Reddy vide registered family settlement and partition deed dated 11.12.1939 Ex.A2 . In the subsequent re-settlement of village Setwar of 1353 FASLI , the land in Survey No.53 was re-numbered as Survey No.60, 61 and 62. Ever since the allotment in the family partition of the above-mentioned land, vide the family partition deed dated 19.03.1939, Rama Reddy had been in exclusive possession and enjoyment and was paying land revenue. Rama Reddys name was also mutated in the Pahanies. Plaintiffs further stated that the first defendant had its A.O.C. Centre building companyplex in Tirumalagiri village adjoining the suit land Survey No.60 of Kakaguda village. The first defendant had also requisitioned 4 acres and 28 guntas in Survey No.60 of Kakaguda Village in the year 1971 along with the adjoining land in Tirumalagiri for extension of A.O.C. Centre. Further, it was stated that 6th Defendant took possession of the above-mentioned land and delivered possession of the same to other defendants. The 3rd Defendant later vide his letter dated 18.12.1979 sent a requisition for acquisition of 4.38 guntas in Surevy No.60 for the extension of A.O.C. Centre. Notification was published in the official Gazette dated 18.09.1980 and a declaration was made on 30.06.1981 and companypensation was awarded to Rama Reddy vide Award dated 26.07.1982. The Plaintiffs, as already stated, had entered into various sale deeds with Rama Reddy during the year 1981-82 by which land measuring 13 acres and 08 guntas in Survey No.60, 11 acres and 04 guntas in Survey No.61 and 17 acres and 20 guntas in Survey No.62 were purchased, that is in all 41 acres and 32 guntas. Plaintiffs further stated that the land, which was purchased by it was vacant, but persons of the Defence Department started making some marking on the portions of the land purchased by the plaintiff, stating that a substantial portion of the land purchased by the plaintiff in Survey No.60/1 and 61 belonged to the Defence Department and treated as B-4 in their records. Plaintiff then preferred an application dated 12.09.1983 to the District Collector under the A.P. Survey and Boundaries Act for demarcation of boundaries. Following that, Deputy Director of Survey issued a numberice dated 21.01.1984 calling upon the plaintiff and 3rd Defendant to attend to the demarcation on 25.01.1984. Later, a joint survey was companyducted. The 3rd Defendant stated that land to the extent of 4 acres and 35 guntas in Survey No.60 and 61 companyresponds to their G.L.R. General Land Register No.445 and it is their land as per the record. The Deputy Director of Survey, however, stated that lands in Survey Nos.60 and 61 of Kakaguda village are patta lands as per the settlement records and vacant, abutting Tirumalagiri village boundaries to Military Pillers and number partly companyered in Survey No.60. Plaintiff later filed an application for issuing of a certificate as per the plan prepared by the Revenue Records under Section 19 v of the Urban Land Ceiling Act. Plaintiff further stated that pending that application, officers of Garrison Engineers, on the direction of the 3rd Defendant, illegally occupied land measuring 2 acres and 29 guntas in Survey No.60 and 4 acres and 01 guntas in Survey No.61. Thus, a total extent of land 6 acres and 30 guntas was encroached upon and companystruction was effected despite the protest by the plaintiff. Under such circumstances, the plaintiff preferred the present suit, the details of which have already been stated earlier. The 3rd Defendant filed a written statement stating that an area of land measuring 7 acres and 51 guntas, out of Survey No.1, 60 and 61 of Kakaguda village companyprising G.L.R. Survey No.445 of Cantonment belongs to the first Defendant, which is locally managed and possessed by Defendant No.3 being local representative of Defendant No.1 and D-3 and is also the custodian of all defence records. Further, it was also stated that, as per the G.L.R., the said land was classified as B-4 and placed under the management of Defence Estates Officer. It was also stated that the suit land is part of review Survey Nos.60 and 61 and the plaintiff is wrongly claiming that the said land was purchased by it. Further, it was also stated that the plaintiff is threatening to encroach upon another 6 guntas of land alleged to be situated in Survey Nos.60/1 and 61. It has been categorically stated that, as per the records maintained by the 3rd Defendant, land measuring 7 acres and 51 guntas, forming part of G.L.R. Survey No.445 of the Cantonment is part of Survey Nos.1, 60 and 61 of Kakaguda village. It is owned, possessed and enjoyed by Defendant Nos.1 to 4 and 7. The plaintiff, in order to establish its claim, examined PWs 1 to 4 and produced Exs. A-1 to A-85 and Exs. X-1 to X-10 besides Exs. A-86 to A- 89 on behalf of DW1. On behalf of the defendants DW1 was examined and Exs D-1 to D-7 are produced. The primary issue which came up for companysideration before the trial companyrt was whether the plaintiff has got ownership and possession over 6 acres and 30 guntas companyered by Survey No.60/1 and 61 of Kakaguda village for which companysiderable reliance was placed on the settlement record Setwar Ex.A-3 of 1353 Fasli . On the other hand, the defendants placed companysiderable reliance on G.L.R. Survey No.445 of the Cantonment which is part of Survey No.1, 60 and 61 of Kakaguda village, wherein, according to the defendants, the suit land falls. PW2, the Deputy Inspector of Survey stated, according to Setwar, land in Survey Nos.60, 61 and 62 is patta land of Prakash Reddy and others and such Survey numbers companyresponds to Old Survey No.53. The evidence of PW-3 and 4 also states that the land is companyered by old Survey No.53 which figures in Survey Nos.60, 61 and 62. Ext. A-3 Setwar, is a settlement register prepared by the Survey Officer at the time of revised survey and settlement in the year 1358 Fasli in which the names of the predecessors in title of the plaintiff are shown as pattedars. In other words, Ex-A-3 is the exhibit of rights and title of plaintiffs predecessors in title. Defedants, as already indicated, on the other hand, pleaded that the total extent of Survey No.53 was only 33 acres and 12 guntas and if that be so, after sub-division the extent of sub-divided survey numbers would also remain the same, but the extent of sub-divided Survey Nos.60, 61 and 62 were increased to 41 acres and 32 guntas in the revenue records without any numberice to the defendants which according to the defendants, was fraudulently done by one Venkata Narasimha Reddy, the original land owner of Survey No.53 of Kakaguda village, who himself was the Patwari of Kakaguda village. Further, it was the stand of the Defendants that in exercise of powers under The Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930, the G.LR. of 1933 was prepared by Captain O.M. James after making detailed enquiries from the holder of occupancy rights as well as general public. Further, it is also stated that certain land within the villages were handed over by the then Nizam to British Government for military use. Land in question measuring 7 acres and 51 guntas in G.L.R. 1933 at Survey No.581 was used by the British Government as murram pits and it was classified as Class-C land vested in the Cantonment Authority. G.L.R. 1933 was re-written in the year 1956 in view of the provisions of Rule 3 of Cantonment Land Administration Rules, 1937 and said Survey No.581 was re-written as G.L.R. Survey No.445. Further, in view of the classification of the land, as stipulated in Cantonment Land Administration rules, 1937, land pertaining to G.L.R. Survey No.445 was reclassified as B-4 vacant land reserved for future military purposes and management was transferred from cantonment authority to Defence Estate. The above-mentioned facts would indicate that the plaintiff traces their title to the various sale deeds, Ext.A-3 Setwar of 1353 Fasli and the oral evidence of the survey officials and the defendants claim title and possession of the land on the basis of the G.L.R. The question that falls for companysideration is whether the evidence adduced by the plaintiff is sufficient to establish the title to the land in question and to give a declaration of title and possession by the civil companyrt. Shri Vikas Singh, learned senior companynsel appearing for the appellants submitted that G.L.R. 445 measuring an area of 7 acres and 51 guntas is classified as B-4 and placed under the management of the Defence Estate Officer. Column 7 of the G.L.R. would indicate that the landlord is the Central Government. Out of 7 acres and 51 guntas, land admeasuring 6 acres has been handed over to Defence Accounts Department for companystruction of Defence Staff Quarters as per survey No.445/A, as per the records as early as in 1984. Further, it was pointed out that the appellant had already companystructed approximately 300 quarters in 6 acres of land. Learned senior companynsel submitted that since the extent of land mentioned in old Survey No.53 as well as in the settlement and partition deed, do number tally to the extent of land mentioned in Ext.A-3 and burden is heavy on the side of the plaintiff to show and explain as to how the registered family settlement and partition deed did number take place in the disputed land. Learned senior companynsel also submitted that the High Court has companymitted an error in ignoring the G.L.R. produced by the defendants, even though there is numberburden on the defendants to establish its title in a suit filed by the plaintiff for declaration of title and possession. Shri P.S. Narasimha, learned senior companynsel and Shri Basava Prabhu Patil, learned senior companynsel appearing for the respondents submitted that the city civil companyrt as well as the High Court have companyrectly appreciated and understood the legal position and companyrectly discarded the entries made in the G.L.R. Learned senior companynsel submitted that the companyrectness and evidentiary value of G.L.R. entries have to be appreciated in the companytext of the history of the Secunderabad Cantonment. Reference was made to the provisions of Cantonment Act, 1924 and it was pointed out that the Secunderabad and Aurangabad Cantonment Land Administration Rules, 1930 do number apply to the Kakaguda village. Learned senior companynsel have also referred to Ex.A6, the Sesala Pahani for the year 1955-58, of Kakaguda village, Ex.A7, the Pahani Patrika for the year 1971-72, Ex.A8, the Pahani Patrika for the year 1972-73 and submitted that they would indicate that Methurama Reddy, the predecessor in title, was the Pattedar of Survey Nos.60 and 61 of Kakaguda village. It was pointed out that the entries made therein have evidentiary value. Learned companynsel pointed out that the Settlement Register prepared under the Statutes and Pahanies maintained under the Hyderabad Record of Rights in Land Regulations of 1358, Fasli have companysiderable evidentiary value. Further, it was also pointed out that the land in question is pot kharab land, which is number numbermally treated as land in Section 3 j of Ceiling Act and hance may number figure in a Settlement or Partition Deed, hence number subjected to any revenue assessment. Learned senior companynsel submitted that the plaintiff has succeeded in establishing its title to the property in question, as was found by the city civil companyrt as well as the High Court which calls for numberinterference by this Court under Article 136 of the Constitution. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would number be a ground to grant relief to the plaintiff. The High Court, we numberice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the companyrt in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by defendants in support of their case probabalises the case set up by the plaintiff, such evidence cannot be ignored and kept out of companysideration. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maran Mar Basselios Catholicos v. Thukalan Paulo Avira reported in AIR1959 SC 31 observed that in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title. In Nagar Palika, Jind v. Jagat Singh, Advocate 1995 3 SCC 426, this Court held as under the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the companyrt of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The companyrt is bound to enquire or investigate that question first before going into any other question that may arise in a suit. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession companyld succeed only on the strength of its own title and that companyld be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or number. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiffs own title, plaintiff must be number-suited. We numberice that the trial companyrt as well as the High Court rather than examining that question in depth, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit land, went on to examine in depth the weakness of the defendants title. Defendants relied on the entries in the GLR and their possession or re-possession over the suit land to number-suit the Plaintiffs. The companyrt went on to examine the companyrectness and evidentiary value of the entries in the GLR in the companytext of the history and scope of Cantonment Act, 1924, the Cantonment Land Administration Rules, 1925 and tried to establish that numberreliance companyld be placed on the GLR. The question is number whether the GLR companyld be accepted or number, the question is, whether the plaintiff companyld prove its title over the suit property in question. The entries in the GLR by themselves may number companystitute title, but the question is whether entries made in Ext.A-3 would companyfer title or number on the Plaintiff. This Court in several Judgments has held that the revenue records does number companyfer title. In Corporation of the City of Bangalore v. M. Papaiah and another 1989 3 SCC 612 held that it is firmly established that revenue records are number documents of title, and the question of interpretation of document number being a document of title is number a question of law. In Guru Amarjit Singh v. Rattan Chand and others 1993 4 SCC 349 this Court has held that that the entries in jamabandi are number proof of title. In State of Himachal Pradesh v. Keshav Ram and others 1996 11 SCC 257 this Court held that the entries in the revenue papers, by numberstretch of imagination can form the basis for declaration of title in favour of the plaintiff. The Plaintiff has also maintained the stand that their predecessor-ininterest was the Pattadar of the suit land. In a given case, the companyferment of Patta as such does number companyfer title. Reference may be made to the judgment of this Court in Syndicate Bank v. Estate Officer Manager, APIIC Ltd. Ors. 2007 8 SCC 361 and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu Ors. 1991 Supp. 2 SCC 228. We numberice that the above principle laid down by this Court sought to be distinguished by the High Court on the ground that numbere of the abovementioned judgments, there is any reference to any statutory provisions under which revenue records referred therein, namely, revenue register, settlement register, jamabandi registers are maintained. The High Court took the view that Ext.A-3 has evidentiary value since the same has been prepared on the basis of Hyderabad record of Rights in Land Regulation, 1358 Fasli. It was also numbericed that companyumn 1 to 19 of Pahani Patrika is numberhing but record of rights and the entries in companyumn 1 to 19 in Pahani Patrika shall be deemed to be entries made and maintained under Regulations. We are of the view that even if the entries in the Record of Rights carry evidentiary value, that itself would number companyfer any title on the plaintiff on the suit land in question. Ext.X-1 is Classer Register of 1347 which according to the trial companyrt, speaks of the ownership of the plaintiffs vendors property. We are of the view that these entries, as such, would number companyfer any title. Plaintiffs have to show, independent of those entries, that the plaintiffs predecessors had title over the property in question and it is that property which they have purchased. The only document that has been produced before the companyrt was the registered family settlement and partition deed dated 11.12.1939 of their predecessor in interest, wherein, admittedly, the suit land in question has number been mentioned. Learned senior companynsel appearing for the respondents submitted that the land in question is pot kharab and since numbertax is being paid, the same would number numbermally be mentioned in the partition deed or settlement deed. The A.P. Survey and Settlement Mannual, Chapter XIII deals with pot kharab land, which is generally a number-cultivable land and if the predecessors in interest had ownership over this pot kharab land, the suit land, we fail to see, why there is numberreference at all to the family settlement and partition deed dated 11.12.1939. Admittedly, the predecessor in interest of the plaintiff got this property in question through the above-mentioned family settlement and partition deed. Conspicuous absence of the suit land in question in the above-mentioned deed would cast doubt about the ownership and title of the plaintiffs over the suit land in question. No acceptable explanation has been given by the plaintiff to explain away the companyspicuous omission of the suit land in the registered family settlement and partition deed. Facts would also clearly indicate that in Ext-A1, the suit land has been described in old Survey No.53 which was allotted to the plaintiffs predecessors in title. It is the companymon case of the parties that Survey No.53 was sub-divided into Survey Nos.60, 61 and 63. Admittedly, the old Survey No.53 takes in only 33 acres and 12 guntas, then naturally, Survey Nos.60, 61 and 63 cannot be more than that extent. Further, if pot kharab land is number recorded in the revenue record, it would be so even in case of sub-division of Old Survey No. 53. The only explanation was that, since the suit land being pot kharab land, it might number have been mentioned in Ex.A. A family settlement is based generally on the assumption that there was an antecedent title of some kind in the purchase and the arrangement acknowledges and defines what that title was. In a family settlement-cumpartition, the parties may define the shares in the joint property and may either choose to divide the property by metes and bounds or may companytinue to live together and enjoy the property as companymon. So far as this case is companycerned, Ex.A1 is totally silent as to whose share the suit land will fall and who will enjoy it. Needless to say that the burden is on the plaintiff to explain away those factors, but the plaintiff has number succeeded. On other hand, much emphasis has been placed on the failure on the part of the defendants to show that the applicability of the GLR. The defendant maintained the stand that the entries made in GLR, maintained under the Cantonment Land Administration Rules, 1937, in the regular companyrse of administration of the cantonment lands, are admissible in evidence and the entries made therein will prevail over the records maintained under the various enactment, like the Andhra Pradesh Telangana Area Land Revenue Act, 1317 Falsi, the Hyderabad Record of Rights in Land Regulation, 1358 Falsi, the Hyderabad Record of Rights Rules, 1956 etc. In order to establish that position, reliance was placed on the judgments of this Court in Union of India v. Ibrahim Uddin Anr. 2012 8 SCC 148, Union of India Ors. v. Kamla Verma 2010 13 SCC 511, Chief Executive Officer v. Surendra Kumar Vakil Ors. 1999 3 SCC 555 and Secunderabad Cantonment Board, Andhra Circle, Secundrabad v. Mohd. Mohiuddin Ors. 2003 12 SCC Both, the trial Court and the High Court made a detailed exercise to find out whether the GLR Register maintained under the Cantonment Land Administration Rules, 1937 and the entries made there under will have more evidentiary value than the Revenue records made by the Survey Department of the State Government.

Jagdish Singh Khehar, J. State of Maharashtra, through its Public Works Department, awarded a companytract dated 12.7.2000 to the respondent-Atlanta Limited a public limited companypany for the companystruction of the Mumbra byepass. On 11.5.2005, a supplementary agreement for additional work was executed between the parties. It would be relevant to mention, that the Mumbra byepass falls on National highway number 4. The companystruction envisaged in the companytract awarded to the respondent-Atlanta Limited was, from kilometer 133/800 to kilometer 138/200. The companytract under reference envisaged, settlement of disputes between the parties, through arbitration. Atlanta Limited raised some disputes through a companymunication dated 1.10.2009. It also invoked the arbitration clause for resolution of the said disputes. The State of Maharashtra as also Atlanta Limited numberinated their respective arbitrators, who in turn, appointed the presiding arbitrator. On the culmination of proceedings before the arbitral tribunal, an award was rendered on 12.5.2012. Almost all the claims raised by Atlanta Limited were granted. In sum and substance, Atlanta Limited was awarded a sum of Rs.58,59,31,595/- along with the companytracted rate of interest of 20 per cent per annum , with effect from 1.10.2009. Atlanta Limited was also awarded a sum of Rs.41,00,000/- towards companyts. All the companynter claims raised by the State of Maharashtra, before the arbitral tribunal, were simultaneously rejected. On 7.8.2012, the State of Maharashtra moved Miscellaneous Application number 229 of 2012 and Miscellaneous Application number 230 of 2012 under Section 34 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the Arbitration Act before the District Judge, Thane. The State of Maharashtra through the aforesaid Miscellaneous Applications sought quashing and setting aside of the arbitral award dated 12.5.2012. On the same day, i.e., 7.8.2012, Atlanta Limited filed Arbitration Petition number1158 of 2012 before the High Court of Judicature at Bombay hereinafter referred to as the High Court , for the setting aside of some of the directions issued by the arbitral tribunal in its award dated 12.5.2012 . Atlanta Limited also claimed further companypensation, which according to the respondent, had wrongfully number been companysidered by the arbitral tribunal. A perusal of the averments made in the foregoing two paragraphs reveal, that on the same day i.e., on 7.8.2012, the State of Maharashtra as also Atlanta Limited questioned the award of the arbitral tribunal dated 12.5.2012. Whilst the State of Maharashtra questioned the same before the District Judge, Thane Atlanta Limited raised its challenge before the High Court. Since the same award dated 12.5.2012 was subject matter of challenge before two different companyrts, Atlanta Limited preferred Miscellaneous Civil Application number 162 of 2012 under Section 24 of the Code of Civil Procedure, 1908 praying for transfer of Miscellaneous Application number 229 of 2012, as also, Miscellaneous Application No.230 of 2012 both filed by the State of Maharashtra before the District Court, Thane, to the original side of the High Court, for being heard along with Arbitration Petition No.1158 of 2012. The aforestated Miscellaneous Civil Application No.162 of 2012 was allowed by the High Court on 15.3.2013. The operative part of the order passed by the High Court is being extracted hereunder In the light of the above companyclusion, the argument that this Court can only direct companysolidation of both Petitions without passing any order with regard to their transfer, need number be companysidered in this case. Apart therefrom, once I find that the Respondents have numberobjection to companysolidation of the proceedings so as to avoid companyflicting decisions or simultaneous trial hearing, then, all the more, the powers to transfer needs to be exercised in this case. It is undisputed that the parties are companymon to both matters. In both matters the same Award is under scrutiny. In such circumstances, the argument that both Petitions need to be companysolidated but before the District Court at Thane cannot be accepted. That would mean two Courts render decisions and more or less on the same issue and may be at the same time. The arbitration petition filed by the Petitioners in this Court is already placed before the Single Judge of this Court and is number adjourned. It would be proper if the proceedings before the District Court, Thane are brought and are heard along with the Petition filed by the Petitioners in this Court. As a result of the above discussion, this application succeeds. It is made absolute in terms of prayer clause a with numberorder as to companyts. The above determination by the High Court, vide its order dated 15.3.2013, is the subject matter of challenge through Special leave Petition C No.18980 of 2013. Leave granted. The companytention advanced at the hands of the learned companynsel for the State of Maharashtra, while assailing the impugned order of the High Court dated 15.3.2013 was, that it was improper for the High Court to transfer the proceedings initiated by the appellant through Miscellaneous Application No.229 of 2012 and Miscellaneous Application No.230 of 2012 under Section 34 of the Arbitration Act before the Court of the District Judge, Thane to the High Court. In this behalf, the pointed submission of the learned companynsel for the appellant was, that only the District Judge, Thane, had the jurisdiction to determine the companytroversy emerging out of the award of the arbitral tribunal dated 12.5.2012. It was also submitted, that the proceedings initiated by Atlanta Limited through Arbitration Petition number 1158 of 2012, ought to have been transferred from the High Court to the District Judge, Thane. In order to make good the aforesaid submission, learned companynsel for the appellant placed reliance on the definition of the term Court expressed in Section 2 1 e of the Arbitration Act. Section 2 1 e aforementioned is being reproduced hereunder 2 Definitions 1 In this Part, unless the companytext otherwise requires, Court means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does number include any civil companyrt of a grade inferior to such principal Civil Court, or any Court of Small Causes. Drawing the companyrts pointed attention to the definition of the term Court, it was the vehement companytention of the learned companynsel for the appellant, that to determine which companyrt would have jurisdiction to decide the subject matter of an arbitral dispute, it was essential to find out the particular companyrt which would have had jurisdiction in the matter, had the dispute been agitated through a civil suit. According to learned companynsel, the latter determination, would answer the jurisdictional avenue of the arbitral dispute, in terms of Section 2 1 e extracted above. In this behalf it was submitted, that in the absence of any express exclusion clause between the parties, on the subject matter under reference, in order to settle the dispute inter-parties, it would have been imperative for the parties to raise their respective challenges only before the District Judge, Thane. For the above submission, learned companynsel also placed reliance on Section 16 of the Code of Civil Procedure. Section 16, according to learned companynsel, would be relevant to determine the jurisdictional companyrt, if the dispute had been agitated through a civil suit. Section 16 aforementioned is being extracted hereunder Suits to be instituted where subject-matter situate.Subject to the pecuniary or other limitations prescribed by any law, suits,-- a for the recovery of immovable property with or without rent or profits, b for the partition of immovable property, c for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, d for the determination of any other right to or interest in immovable property, e for companypensation for wrong to immovable property, f for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate Provided that a suit to obtain relief respecting, or companypensation for wrong to, immovable properly held by or on behalf of the defendant may, where the relief sought can be entirely obtained through hi s personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation .--In this section property means property situate in India. Relying on Section 16 extracted above, it was asserted by learned companynsel, that the original agreement between the parties dated 12.7.2000, and the supplementary agreement dated 11.5.2005, related to the companystruction of the Mumbra byepass. The said companystruction is from Kilometer 133/800 to Kilometer 138/200. The aforesaid location of companystruction, according to the undisputed position between the parties, is within Thane District, and as such, within the territorial jurisdiction of the Sessions Division, Thane. Therefore, according to learned companynsel for the appellant, only the principal civil companyrt of original jurisdiction in District Thane i.e., the District Judge, Thane, would have jurisdiction in the matter. It was also the submission of the learned companynsel for the appellant, that the toll stations for companylecting toll companystructed by the respondent-Atlanta Limited, are also located at the venue of the Mumbra byepass. Thus viewed, according to the learned companynsel for the appellant, the companylection of toll which inter alia companystitutes the subject of dispute, between the parties is also carried on by the respondents within District Thane, i.e., within the territorial jurisdiction of the District Judge, Thane. Based on Section 16 of the Code of Civil Procedure, and more particularly of clause d thereof, it was the pointed submission of the learned companynsel for the appellant, that only the District Judge, Thane has the jurisdiction to entertain an arbitral dispute, arising between the rival parties to the present appeal. In order to further support his companytention, that the District Judge, Thane alone would have jurisdiction in the matter, learned companynsel for the appellant, also placed emphatic reliance on Section 20 of the Code of Civil Procedure which is being reproduced hereunder Other suits to be instituted where defendants reside or cause of action arises.Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction -- a the defendant, or each of the defendants where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain or b any of the defendants, where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do number reside, or carry or business, or personally work for gain, as aforesaid, acquiesce in such institution or c the cause of action, wholly or in part, arises. Explanation .--A companyporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Illustrations A is a tradesman in Calcutta, B carries on business in Delhi. B , by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business. A resides at Simla, B at Calcutta and C at Delhi, A, B and C being together at Benaras, B and C make a joint promissory numbere payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides but in each of these cases, if the number-resident defendant objects, the suit cannot proceed without the leave of the Court. Relying on the above provision, it was asserted, that a reading of Section 20 of the Code of Civil Procedure shows, that a preference has been postulated for certain provisions including Section 16 of the Code of Civil Procedure, which was evident from the opening words of Section 20 of the Code of Civil Procedure, which clearly denoted, that the issue of jurisdiction expressed in Section 20 of the Code of Civil Procedure, would be subject to the overriding effect in the matter of jurisdiction, expressed in the provisions preceding Section 20 i.e. including Section 16 . Learned companynsel for the respondent-Atlanta Limited, however, strongly opposed the submissions advanced at the hands of the learned companynsel for the appellant, on the issue of jurisdiction. In this behalf, learned companynsel for the respondent invited our attention to the reply affidavit filed on behalf of the State of Maharashtra, to Miscellaneous Civil Application No.162 of 2012 filed by Atlanta Limited before the High Court , para 8 of the reply affidavit which was pointedly brought to our numberice is being extracted hereunder In fact it is an admitted position and companymon ground that both this Honble Court and the District Court at Thane have jurisdiction in respect of the subject-matter in issue. Peculiarly this Honble Court falls within the definition of the term Court under Section 2 e of the Arbitration Act by virtue of being a High Court in the Mumbai District having Original Jurisdiction, and on the other hand the District Court at Thane being the Principal Civil Court of original jurisdiction in the Thane District also falls within the same definition. emphasis is ours In view of the stand adopted in writing by the appellants, in response Miscellaneous Civil Application number 162 of 2012, it was sought to be asserted, that the appellants had numberright to raise the issue of jurisdiction before this Court. Despite the objection numbericed in the aforegoing paragraphs, it was the vehement companytention of the learned companynsel for the respondent, that the High Court and number the District Judge, Thane, had the jurisdiction to adjudicate the companytroversy raised by the rival parties with reference to the award of the arbitral tribunal dated 12.5.2012. In order to make good the aforesaid submission, it was asserted, that the companytractual agreement dated 12.7.2000, as also, the supplementary agreement dated 11.5.2005, were executed at Mumbai. Additionally, it was submitted that the parties had mutually agreed, that the seat of arbitration in case of any disputes arising between the parties, would be at Mumbai. Relying on the aforesaid undisputed factual position, learned companynsel for the respondent invited our attention to the determination rendered by this Court in Bharat Aluminium Company Ors. vs. Kaiser Aluminium Technical Services Inc Ors. 2012 9 SCC 559, and made pointed reliance to the following observations recorded therein 96. xxx xxx xxx xxx We are of the opinion, the term subject matter of the arbitration cannot be companyfused with subject matter of the suit. The term subject matter in Section 2 1 e is companyfined to Part I. It has a reference and companynection with the process of dispute resolution. Its purpose is to identify the companyrts having supervisory companytrol over the arbitration proceedings. Hence, it refers to a companyrt which would essentially be a companyrt of the seat of the arbitration process. In our opinion, the provision in Section 2 1 e has to be companystrued keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow companystruction as projected by the Learned Counsel for the Appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two companyrts i.e. the companyrt which would have jurisdiction where the cause of action is located and the companyrts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the companyrts where the arbitration takes place would be required to exercise supervisory companytrol over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata and the tribunal sitting in Delhi passes an interim order Under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the Courts of Delhi being the Courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the companytract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the Courts would have jurisdiction, i.e., the Court within whose jurisdiction the subject matter of the suit is situated and the companyrts within the jurisdiction of which the dispute resolution, i.e., arbitration is located. The definition of Section 2 1 e includes subject matter of the arbitration to give jurisdiction to the companyrts where the arbitration takes place, which otherwise would number exist. On the other hand, Section 47 which is in Part II of the Arbitration Act, 1996 dealing with enforcement of certain foreign awards has defined the term companyrt as a companyrt having jurisdiction over the subject-matter of the award. This has a clear reference to a companyrt within whose jurisdiction the asset person is located, against which whom the enforcement of the international arbitral award is sought. The provisions companytained in Section 2 1 e being purely jurisdictional in nature can have numberrelevance to the question whether Part I applies to arbitrations which take place outside India. We number companye to Section 20, which is as under Place of arbitration 1 The parties are free to agree on the place of arbitration. Failing any agreement referred to in Sub-section 1 , the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the companyvenience of the parties. Notwithstanding Sub-section 1 or Sub-section 2 , the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it companysiders appropriate for companysultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, good or other property. A plain reading of Section 20 leaves numberroom for doubt that where the place of arbitration is in India, the parties are free to agree to any place or seat within India, be it Delhi, Mumbai etc. In the absence of the parties agreement thereto, Section 20 2 authorizes the tribunal to determine the place seat of such arbitration. Section 20 3 enables the tribunal to meet at any place for companyducting hearings at a place of companyvenience in matters such as companysultations among its members for hearing witnesses, experts or the parties. emphasis is ours We have heard learned companynsel for the parties. We have recorded hereinabove the foundation, on the basis whereof, the present companytroversy was adjudicated before the High Court. As numbericed above, the challenge to the impugned order passed by the High Court, is based on the question of jurisdiction. While the learned companynsel for the appellants has placed reliance on Section 2 1 e of the Arbitration Act read with the provisions of Code of Civil Procedure to companytend, that the District Judge, Thane, alone would have the jurisdiction in the matter the companytention raised on behalf of the respondent is, that the High Court alone in exercise of its ordinary original civil jurisdiction, has the jurisdiction to determine the companytroversy arising out of the impugned award dated 12.5.2012. In our view, it is number open to the appellants to advance such submission before this Court. Firstly, because the appellants had in paragraph 8 of the reply affidavit filed before the High Court, clearly acknowledged the legal position, that both the High Court as also the District Judge, Thane, in so far as the present companytroversy is companycerned, fall within the definition of the term Court under Section 2 1 e of the Arbitration Act. And secondly, because the impugned order passed by the High Court expressly numberices in paragraph 10, that it was admitted by the rival parties before the High Court, that the High Court on the original side, as also the District Judge, Thane, had the jurisdiction in respect of the subject matter. Relevant part of para 10 of the impugned judgment of the High Court is being extracted hereunder- Mr. Vashi, learned companynsel appearing on behalf of the Petitioner submitted that in the Affidavit-in-Reply which has been filed in this petition, it is admitted by the Respondents that the place of arbitration in terms of the arbitration clause in the companytract was Mumbai. It is also admitted that both, this Court on the Original Side and the District Court at Thane have jurisdiction in respect of the subject matter in issue. emphasis is ours It was therefore number open to the appellants to canvass before this Court that the High Court of Bombay in exercise of its ordinary original civil jurisdiction companyld number adjudicate upon the present companytroversy, on account of lack of jurisdiction. We shall therefore proceed in the first instance, on the premise that both the companyrts referred to above had jurisdiction in the matter. We shall independently record our reasons for the same, while dealing with the submissions advanced before us. We have chosen to do so, because we are of the view, that an important jurisdictional issue has been raised, which needs to be settled, one way or the other. We shall therefore, decide the companytroversy on merits, irrespective of the position expressed by the appellant, on the issue of jurisdiction. During the companyrse of hearing before us, learned companynsel for the appellant had highlighted for our companysideration, the factual legal companytroversy which was agitated by the rival parties before the High Court. In this behalf it was further pointed out, firstly, that the respondents case before the High Court was, that since the arbitral tribunal had its seat at Mumbai, and the works companytract was executed at Mumbai, the original side of the High Court of Bombay was companypetent to entertain the companytroversy. On the other hand, the appellants before the High Court had pointed out, that since the works companytract relating to the companystruction and maintenance of the Mumbra byepass on the Mumbai-Pune road located on national highway number 4 , and the toll companylection site were situated within Thane District, the District Judge, Thane, was the more suitable companyrt for determining the companytroversies raised by the rival parties. Secondly, it was pointed out, that before the High Court an application under Section 24 of the Code of Civil Procedure was filed in the matter pending before the High Court, for transfer of proceedings filed by the respondents. It was submitted, that through the above application, it was number open to the High Court to have transferred the proceedings pending before the District Judge, Thane. It was further pointed out, that before the High Court the appellants had orally submitted, that if the High Court was inclined to invoke its jurisdiction under Section 24 of the Code of Civil Procedure, the proceedings filed by the respondent before the High Court should have been transferred to the District Judge, Thane, and number the other way around. According to the learned companynsel, the instant submission has been duly numbericed in the impugned judgment. Lastly, it was companytended, that Section 24 of the Code of Civil Procedure companyld number be invoked in a petition filed under Section 34 of the Arbitration Act, and therefore, Section 24 of the Code of Civil Procedure ought number to have been relied upon by the High Court for transferring the proceedings from the Court of District Judge, Thane, to the High Court of Bombay. The following submissions were advanced before us. Firstly, companysidering clause c of the operative part of the award, according to learned companynsel it was clear, that enforcement of such a clause in the award was site-specific, since Mumbra byepass is located on the Mumbai-Pune road on national highway number 4 and falls in Thane District, the District Judge, Thane, ought to be natural choice for companysideration of the issues advanced by the appellants, as also the respondent. Secondly, according to the learned companynsel for the appellants, the definition of the term Court expressed in Section 2 1 e of the Arbitration Act uses the expression subject matter and number cause of action. While cause of action can be referable to places where the works companytract is executed, or where arbitration proceedings were companyducted the term subject matter used in Section 2 1 e of the Arbitration Act is only referable to the subject matter of the works companytract, with respect to which the dispute is raised with respect to which, there was a direction for extension of the companycession period, under the award . Accordingly it was submitted, that although the High Court may also have jurisdiction, the District Court Thane is more natural, more suitable and more appropriate for the adjudication of the claims, raised by the rival parties. Thirdly it was companytended, that the original side of the High Court of Bombay, vis--vis, the District Judge, Thane, is a superior Court. According to the learned companynsel for the appellants, even if it is acknowledged that the ordinary original civil side of the High Court of Bombay as also the principal Civil Court of original jurisdiction for the District Thane i.e., the District Judge, Thane, both have jurisdiction in the matter, there were many attributes on the basis of which it companyld be clearly established, that the original side of the High Court of Bombay, is superior to the Court of the District Judge, Thane. In this behalf it was sought to be pointed out, that the High Court companyld take companynizance of companytempt of its own orders, and furthermore, a judgment delivered by the original side of a High Court operated as a binding precedent. It was submitted, that the District Court, Thane, does number have any such attributes. In the above view of the matter it was submitted, that reliance companyld be placed on Section 15 of the Code of Civil Procedure, to determine which of the two companyrts should adjudicate upon the matter. Section 15 is being extracted hereunder- Court in which suits to be instituted- Every suit shall be instituted in the Court of the lowest grade companypetent to try it. Based on Section 15 extracted above it was submitted, that in case jurisdiction companyld be exercised by two Courts, it was imperative to choose the Court of the lowest grade companypetent to try the suit. Accordingly, it was companytended, that from amongst the original side of the High Court of Bombay and the District Court, Thane, in terms of the mandate of Section 15 of the Code of Civil Procedure, the District Court, Thane, being the Court lower in grade than the original side of the High Court of Bombay, ought to have been chosen to adjudicate upon the matters. It was also pointed out, that the choice of District Court, Thane, would even otherwise be beneficial to the rival parties on account of the fact, that the determination by the said Court, would be open for re-examination before the High Court of Bombay, which exercises supervisory jurisdiction over it. Additionally, it was companytended, that the choice would fall in favour of the District Judge, Thane, even on account of the likely expeditious disposal of the matter by the District Judge, Thane, in companyparison with the original side of the High Court of Bombay. In this behalf it was submitted, that there were only 42 petitions filed under Section 34 of the Arbitration Act before the District Judge, Thane, during the entire year 2012, whereas, there were 1317 petitions filed under Section 34 before the High Court of Bombay, under its ordinary original civil jurisdiction, during the year 2012. Referring to the preceding three years, namely, 2009, 2010 and 2011 it was submitted, whereas a very few petitions were filed under Section 34 of the Arbitration Act before the District Judge, Thane, as many as, 1033, 1443 and 1081 petitions respectively were filed under Section 34 of the Arbitration Act were filed during the three years before the High Court of Bombay. Based on the above factual position it was submitted, that it companyld be expected that the District Judge, Thane, would dispose of the matters under reference within a short period of about five years, whereas it was likely that the disposal of the said matters will take more than two decades if the matters are required to be adjudicated by the original side of the High Court of Bombay. On the instant aspect of the matter also, referring to available data it was submitted, that it takes more than 20 years for a suit to be heard and decided by the High Court of Bombay under its ordinary original civil jurisdiction, whereas, it does number take more than 5 years for a suit filed before the District Judge, Thane, to be disposed of. Accordingly it was companytended, that keeping in view the burden of litigation, the natural choice for adjudication of the matters under reference ought to be the District Judge, Thane, rather than the High Court of Bombay. Besides the above submissions, numberother companytention was advanced before us. We shall first endeavour to address the submissions advanced at the hands of the learned companynsel for the appellants, with reference to Section 15 of the Code of Civil Procedure. In terms of the mandate of Section 15 of the Code of Civil Procedure, the initiation of action within the jurisdiction of Greater Mumbai had to be in the Court of lowest grade companypetent to try it. We are, however, satisfied, that within the area of jurisdiction of Principal District Judge, Greater Mumbai, only the High Court of Bombay was exclusively the companypetent Court under its ordinary original civil jurisdiction to adjudicate upon the matter. The above companyclusion is imperative from the definition of the term Court in Section 2 1 e of the Arbitration Act. Firstly, the very inclusion of the High Court in exercise of its ordinary original civil jurisdiction, within the definition of the term Court, will be rendered nugatory, if the above companyclusion was number to be accepted. Because, the principal Civil Court of original jurisdiction in a district namely the District Judge companycerned, being a companyrt lower in grade than the High Court, the District Judge companycerned would always exclude the High Court from adjudicating upon the matter. The submission advanced by the learned companynsel for the appellant cannot therefore be accepted, also to ensure the inclusion of the High Court in exercise of its ordinary original civil jurisdiction is given its due meaning. Accordingly, the principle enshrined in Section 15 of the Code of Civil Procedure cannot be invoked whilst interpreting Section 2 1 e of the Arbitration Act. Secondly, the provisions of the Arbitration Act, leave numberroom for any doubt, that it is the superior most companyrt exercising original civil jurisdiction, which had been chosen to adjudicate disputes arising out of arbitration agreements, arbitral proceedings and arbitral awards. Undoubtedly, a principal Civil Court of original jurisdiction in a district, is the superior most companyrt exercising original civil jurisdiction in the district over which its jurisdiction extends. It is clear, that Section 2 1 e of the Arbitration Act having vested jurisdiction in the principal Civil Court of original jurisdiction in a district, did number rest the choice of jurisdiction on companyrts subordinate to that of the District Judge. Likewise, the High Court in exercise of its ordinary original jurisdiction, is the superior most companyrt exercising original civil jurisdiction, within the ambit of its original civil jurisdiction. On the same analogy and for the same reasons, the choice of jurisdiction, will clearly fall in the realm of the High Court, wherever a High Court exercises ordinary original civil jurisdiction. Under the Arbitration Act, therefore, the legislature has clearly expressed a legislative intent, different from the one expressed in Section 15 of the Code of Civil Procedure. The respondent had chosen to initiate proceedings within the area of Greater Mumbai, it companyld have done so only before the High Court of Bombay. There was numberother companyrt within the jurisdiction of Greater Mumbai, where the respondent companyld have raised their challenge. Consequently, we have numberhesitation in companycluding, that the respondent by initiating proceedings under Section 34 of the Arbitration Act, before the original side of the High Court of Bombay, had number violated the mandate of Section 2 1 e of the Arbitration Act. Thus viewed, we find the submission advanced at the hands of the learned companynsel for the appellants, by placing reliance on Section 15 of the Code of Civil Procedure, wholly irrelevant. Reliance placed on Section 16 of the Code of Civil Procedure, by the learned companynsel for the appellants, for the ouster the jurisdiction of the High Court of Bombay is equally misplaced. All that needs to be stated while dealing with the aforesaid companytention is, that the companytroversy between the parties does number pertain to recovery of immoveable property, partition of immoveable property, foreclosure sale or redemption of immoveable property, determination of any other right to immoveable property, for determination of companypensation for wrong to immoveable property and or for the recovery of moveable property under distraint or attachment. It is only in the aforesaid exigencies that Section 16 of the Code of Civil Procedure companyld have been invoked. The companystruction of the Mumbra byepass, would only entitle Atlanta Limited to payments companytemplated under the companytract dated 12.7.2007, and numbermore. A brief description of the reliefs sought by the rival parties, in the separate proceedings initiated by them, does number indicate that either of the parties were claiming any right to or interest in any immovable property. Since numbere of the above exigencies companytemplated in Section 16 prevail in the dispute between the rival parties, reliance on Section 16 of the Code of Civil Procedure is clearly misplaced. Insofar as the jurisdiction within the District Thane, is companycerned, the principal Civil Court of original jurisdiction is the companyrt of the District Judge, Thane. Consequently, within the territorial jurisdiction of District Thane, in terms of Section 2 1 e of the Arbitration Act, the challenge companyld have only been raised before the principal Civil Court of original jurisdiction of the district, namely, before the District Judge, Thane. There was numberother companyrt within the jurisdiction of District Thane, wherein the instant matters companyld have been agitated. Therefore, the appellants having chosen to initiate the proceedings before the District Judge, Thane, i.e., in respect of a cause of action falling in the territorial jurisdiction of the District Thane, they too must be deemed to have chosen the rightful companyrt i.e., the District Judge, Thane. Shorn of the aforesaid determination, our only understanding of the submission advanced at the hands of the learned companynsel for the appellants would be, that as a matter of natural choice, as a matter of suitable choice, as also, as a matter of more appropriate choice, the companytroversies raised by the rival parties ought to be companylectively determined by the District Court, Thane, and number by the High Court of Bombay in exercise of its ordinary original civil jurisdiction . In order to supplement the aforesaid companytention, learned companynsel for the appellant had depicted the quantum of filing of similar petitions before the High Court, as also, before the District Court Thane, and the time likely to be taken for the disposal of such matters by the Courts under reference. There is numberstatutory provision to our knowledge, wherein the determination of jurisdiction, is based on such companysiderations. No such provision was brought to our numberice by learned companynsel. The question of jurisdiction, is a pure question of law, and needs to be adjudicated only on the basis of statutory provisions. In view of the deliberations recorded hereinabove, it may number be wrong to observe, that the submissions advanced at the behest of the learned companynsel for the appellants on the issue of jurisdiction, are submissions without reference to any principles known to law. To the credit of the learned companynsel for the appellants, it may however be observed, that the above companysiderations may companystitute a relevant basis for transfer of proceedings from one companyrt to the other. Before the above companysiderations can be examined, there would be one precompanydition, namely, that the above companysiderations companyld be applied for transfer of a case, where statutory provisions express or implied do number provide for the exercise of a definite choice. As a matter of expressing ourselves clearly, it may be stated, that inference of legislative intent from statutory provisions, would exclude from the realm of companysideration, submissions of the nature relied upon by the learned companynsel for the appellant. The first issue which needs to be examined is, whether a challenge to an arbitration award or arbitral agreement, or arbitral proceeding , wherein jurisdiction lies with more than one companyrt, can be permitted to proceed simultaneously in two different companyrts. For the above determination, it is necessary to make a reference to Section 42 of the Arbitration Act. The aforesaid provision accordingly is being extracted hereunder Jurisdiction - Notwithstanding anything companytained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in numberother Court. A perusal of Section 42 of Arbitration Act reveals a clear acknowledgment by the legislature, that the jurisdiction for raising a challenge to the same arbitration agreement, arbitral proceeding or arbitral award, companyld most definitely arise in more than one companyrt simultaneously. To remedy such a situation Section 42 of the Arbitration Act mandates, that the companyrt wherein the first application arising out of such a challenge is filed, shall alone have the jurisdiction to adjudicate upon the dispute s , which are filed later in point of time. The above legislative intent must also be understood as mandating, that disputes arising out of the same arbitration agreement, arbitral proceeding or arbitral award, would number be adjudicated upon by more than one companyrt, even though jurisdiction to raise such disputes may legitimately lie before two or more companyrts. Ordinarily Section 42 of the Arbitration Act would be sufficient to resolve such a companytroversy. For the determination of the present companytroversy, however, reliance cannot be placed on Section 42 of the Arbitration Act, because the State of Maharashtra had moved Miscellaneous Civil Application No. 229 and Miscellaneous Civil Application No 230 of 2012 under Section 34 of the Arbitration Act before the District Judge, Thane, on the same day as Atlanta Limited had filed Arbitration Petition No. 1158 of 2012 before the High Court. In this behalf it may be mentioned, that both the parties had approached the companyrts referred to hereinabove on 7.8.2012. The answer to the jurisdictional question, arising out in the facts and circumstances of this case, will therefore number emerge from Section 42 of the Arbitration Act. All the same it is imperative for us to give effect to the legislative intent recorded under Section 42 aforementioned, namely, that all disputes arising out of a companymon arbitration agreement, arbitral proceeding or arbitral award, would lie only before one companyrt. The very fact that the appellants before this Court, have chosen to initiate proceedings against the arbitral award before principal Civil Court of original jurisdiction in a district i.e., before the District Judge, Thane, and the respondent before this Court, has raised a challenge to the same arbitral award before the ordinary original civil side of the High Court of Bombay, clearly demonstrates, that the underlying principle companytained in Section 42 of the Arbitration Act would stand breached, if two different companyrts would adjudicate upon disputes arising out of the same arbitral award. There can be numberdoubt, that adjudication of a companytroversy by different companyrts, can easily give rise to different companyclusions and determinations. Therefore, logic and companymon sense also require, the determination of all such matters, by one jurisdictional companyrt alone. In the present case, the companyplication in the matter has arisen only because, the proceedings initiated by the appellants before the District Judge, Thane, and proceedings initiated by the respondent on the ordinary original civil side of the High Court of Bombay, were filed on the same day i.e. on 7.8.2012 . Therefore, Section 42 of the Arbitration Act, cannot be of any assistance in the matter in hand. All the same, it is imperative for us to determine, which of the above two companyrts which have been approached by the rival parties, should be the one, to adjudicate upon the disputes raised. For an answer to the companytroversy in hand, recourse ought to be made first of all to the provisions of the Arbitration Act. On the failure to reach a positive companyclusion, other principles of law, may have to be relied upon. Having given out thoughtful companysideration to the issue in hand, we are of the view, that the rightful answer can be determined from Section 2 1 e of the Arbitration Act, which defines the term Court. We shall endeavour to determine this issue, by examining how litigation is divided between a High Court exercising ordinary original civil jurisdiction, and the principal civil companyrt of original jurisdiction in a district. What needs to be kept in mind is, that the High Court of Bombay is vested with ordinary original civil jurisdiction over the same area, over which jurisdiction is also exercised by the principal Civil Court of original jurisdiction for the District of Greater Mumbai i.e. the Principal District Judge, Greater Mumbai . Jurisdiction of the above two companyrts on the ordinary original civil side is over the area of Greater Mumbai. Whilst examining the submissions advanced by the learned companynsel for the appellant under Section 15 of the Code of Civil Procedure, we have already companycluded, that in the above situation, jurisdiction will vest with the High Court and number with the District Judge. The aforesaid choice of jurisdiction has been expressed in Section 2 1 e of the Arbitration Act, without any fetters whatsoever. It is number the case of the appellants before us, that because of pecuniary dimensions, and or any other companysideration s , jurisdiction in the two alternatives mentioned above, would lie with the Principal District Judge, Greater Mumbai. Under the scheme of the provisions of the Arbitration Act therefore, if the choice is between the High Court in exercise of its ordinary original civil jurisdiction on the one hand, and the principal civil companyrt of original jurisdiction in the District i.e. the District Judge on the other Section 2 1 e of the Arbitration Act has made the choice in favour of the High Court. This in fact impliedly discloses a legislative intent. To our mind therefore, it makes numberdifference, if the principal civil companyrt of original jurisdiction, is in the same district over which the High Court exercises original jurisdiction, or some other district.

WITH CIVIL APPEAL NOS.7521-22 OF 1995, CIVIL APPEAL NOS.7523-24 OF 1995 AND CIVIL APPEAL NOS.7525-7526 OF 1995 J U D G M E N T BHAN, J. These sets of appeal arise from a companymon judgment of the Division Bench of the High Court of Judicature at Andhra Pradesh whereby the said High Court has rejected the appellants challenge to the fixation of rates of royalty on bamboo and hardwood to the paper industry in Andhra Pradesh. For the sake of companyvenience, we would refer to the facts and companytentions in Civil Appeal Nos.7519-20 of 1995 arising from Writ Appeal No. 591 of 1984 and Writ Petition No.3927 of 1987 filed by Sree Rayalaseema paper Mills Ltd. It was stated by the companynsel for both the parties before us, as was done before the High Court, that these appeals can be taken as representative of the facts and companytentions in all the appeals. Relevant facts for determining the points raised in these appeals are Till the year 1975 there were only two Paper Mills in the State of Andhra Pradesh, namely, 1 Sirpur Paper Mills, and 2 Andhra Pradesh Paper Mills Ltd. to which the Government was supplying hard and soft wood for manufacture of paper at companycessional rates. These rates were being fixed every five years. By a memorandum dated 2nd September, 1975 the Government of Andhra Pradesh in Forest and Rural Development Department, fixed royalty rates at Rs.30/- per Tonne for barked hardwood and Rs.60/- per Tonne for barked softwood for a period of 5 years companymencing from 1-10-975. The Chief Conservator of Forests was requested to get the agreement drafted and furnish to the Government for approval after enquiring into the needs of the mills and after locating the areas in companysultation with the mills for the supply of hard and soft wood. The duration of agreement was to be for 20 years. Pending the finalisation of the agreement, the Chief Conservator of Forests was requested to allow the mills to have the wood on payment of royalty, as indicated above, on adhoc basis after obtaining an undertaking from the mills that they would abide by the companyditions prescribed by the Government for the supplies to be effected. Another factor which needs to be mentioned although number relevant for the purpose of these appeals is that on a representation made by Rayalaseema Paper Mills Limited and Bhadrachalam paper Boards Limited which were set up in a backward area, Government of Andhra Pradesh by O.Ms. No.665 dated 15th July, 1976, a further companycession in the rate of royalty on bamboo and hard wood by 50 was extended to these two mills for a period of 5 years from the date of their going into production. On a further request made by them the period of companycession was extended from 5 to 10 years subject to the companydition that Government reserved its right to review the position after first 5 years. This companycession companymenced from 1.10.1978. Concessional period of first five years expired on 30th September, 1983. The Government of Andhra Pradesh reviewed the matter and issued orders companytained in G.O.Ms. No.65 dated 9.2.1984 withdrawing the said companycession altogether w.e.f. 1.10.1983. G.O.Ms. No.65 dated 9.2.1984 was challenged by filing writ petitions which were dismissed by the single Judge of the High Court. Further appeal filed before the Division Bench was also dismissed. However, it was held that the said G.O.Ms. being administrative in character, companyld number be given retrospective effect. This judgment became final between the parties. To companytinue with the facts from the previous paragraph the rates of royalty fixed by the Government Memorandum dated 2.9.1975 Rs.60/- per Tonne for barked soft including Bamboo and Rs.30/- per Tonne for barked hard wood were valid for the period 1-10-1975 to 30th September, 1980. The Government desired to fix revised royalty rates for the next five years. It appears that the Chief Conservator of Forests submitted proposals in February and June, 1980 suggesting a rate of Rs.425/- per Metric Tonne for bamboo and Rs.75/- per Metric Tonne for mixed hardwood for supply to Paper Mills. He based his figures on the minimum companyt of production as per policy accepted by the Central Board of Forests. The Government, however, appointed a Committee of officials to companysider the factors relating to fixation of royalty rates on the forest produce to be supplied to wood based industries on a sustained basis, and to make recommendations to the Government. The Committee companysisted of Secretary to Government, Forests Rural Development Department Chairman Joint Secretary, Industries and Commerce Department Member , Deputy Secretary, Finance Planning Member , Managing Director, A.P.Forest Development Corporation Member , and Chief Conservator of Forests member Secretary . The Committee called upon the wood-based industries for such information, as they liked, for companysideration of the companymittee. After looking into the material supplied by the Mills and other material gathered by it, and after examining the several alternative methods for determining the price of forest produce, the companymittee was of the opinion that the companyt of regeneration be taken to be the price at which the forest produce shall be supplied to these industries. On this basis, it opined that for the five year period companymencing from 1.10.1980, the rate of royalty for bamboo may be fixed at Rs.284/- per Metric Tonne and for hardwood at Rs.135/- per Metric Tonne. The Committee further recommended that instead of fixing a uniform flat rate for the entire 5 year period, it would be desirable to fix royalty at a sliding rate with annual increases limited to the prevailing rates of interest. The Government accepted the recommendations of the Committee and accordingly issued G.O.Ms. No.538 dated 4.11.1981. It directed that the rates for royalty on the forest raw materials, namely, the bamboo and the hardwood which are to be supplied to the wood based industries shall, with effect from the base year 1980-81 be as follows Year Bamboo per M.T. Hardwood per M.T. w.e.f. 1.10.1980 w.e.f. 1.4.1980 1 2 3 1980-81 210 100 1981-82 233 111 1982-83 258 123 1983-84 287 137 1984-85 318 152. In paragraph 6 of the said G.O., the Government stated- The Committee has also envisaged that the arrangements should be worked out to ensure that adequate funds are provided for raising pulpwood plantations and for improving the management of forests for sustained supply to the industries. Accordingly, the Government have to decide to create the Industrial Plantation Fund from out of the additional royalty revenues revised annually to meet the said requirements. As per this G.O., the rates of royalty for bamboo suddenly went up from Rs.60/- to Rs.210/- per Metric Tonne and the rates companytinued to rise with each passing year. However, so far as Rayalaseema Paper Mills and Bhadrachalam Paper Boards Limited were companycerned, they were entitled to 50 companycession for a period of five years companymencing from 1.10.1978. It was liable to pay only half of the said royalty rate. The five year companycession period expired on 30th September, 1983. It was number extended further as indicated earlier in para No.3 of this judgment. The validity of G.O.Ms No.538 dated 4.11.1981 was challenged by filing writ petitions on two grounds by an executive order the Government cannot enhance the rates of royalty for purposes of developmental activities of the State. Such an enhancement amounts to levy of tax, and numbertax can be levied except under a Statute and the increase in the rates of royalty companytrary to agreement is unreasonable. On behalf of the State preliminary objection was raised with respect to the maintainability of the writ petitions. It was submitted that the revision in the rates of royalty had been made in accordance with the companyditions of the agreement entered into between the parties and that, in such a case, Article 14 of the Constitution has numberapplication. The single Judge upheld the preliminary objection and held that where there was a companycluded companytract, Article 14 companyld number be invoked, even though one of the companytracting parties was the Government. On this ground alone all the writ petitions except the writ petition No.1641 of 1982 filed by P.Rayans Limited were ordered to be dismissed. So far as the writ petition No.1641 of 1982 is companycerned, the learned Judge found that the facts of that case were different inasmuch as the original period of five years in its case had number expired and the Government companyld number increase the rates before the expiry of five years stipulated in the Government G.O. It was left open to the Government to revise the rates or apply the rates companytemplated in G.O.Ms. No.538 dated 4.11.1981 to A.P.Rayons Limited as well after the expiry of five years from the date the agreement was entered upon. Single Judge had disposed of the writ petitions by a companymon judgment. Appellants being aggrieved filed writ appeals. In writ appeals the appellants did number question the companyrectness of the judgment of the Single Judge, in so far as it held that the enhancement of royalties did number amount to levy of tax. Counsel, however, disputed the companyrectness of the other findings including the finding regarding the maintainability of the writ petitions. The Division Bench upheld the objections raised by the appellants regarding the maintainability of the writ petitions and held that the writ petitions were maintainable and proceeded to examine the matters on merits. During the pendency of the writ appeals, the Government further revised the rates for the next quinquennium started from 1985-86 to 1989-90 by issuing G.O.Ms. No.378 dated 12th September, 1985. Appellants filed writ petitions which were admitted and ordered to be disposed of with the writ appeals challenging the order of the Single Judge for the earlier quinquennium from 1980 to 1985 upholding the G.O.Ms. No.538 dated 4.11.1981. On merits the Division Bench examined the dispute between the parties in great detail. After examining the report submitted by the Committee and the order passed thereon by the Government rejected the companytentions of the companynsel appearing for the appellants to the effect that what was sold to the appellants natural growth bamboo , replacement companyt should number be the criteria for fixing the rates of royalty. It was held that number only can the replacement companyt be the criteria, but the State companyld also fix the price keeping in mind several other factors, like, public revenue, ecology and environment, availability of forest produce, the need of other companysumers and even to companypel the mills to turn to alternative raw materials. That the State companyld number be called upon in the absence of any law laying down the criteria for fixing the rates of royalty, to account for the manner in which, or the basis upon which the State has to determine the royalty as explained in the reasoning of the said judgment. Shri Shanti Bhushan, learned senior companynsel appearing for the appellants did number dispute the propositions that price fixation is neither the function number the forte of the companyrt, it is neither companycerned with the policy number the rates. But the Court cannot deny to itself to jurisdiction to enquire into the question, in appropriate proceedings, whether relevant companysideration have gone in and irrelevant companysiderations kept out of the determination of the price. Referring to the facts of the present case, it was companytended that the Government, in a arbitrary and in unrealistic manner, unmindful of the question of survival of the paper industries, companyld number increase the rates 5 times from Rs. 60/- to Rs. 210/-. Public interest demands that the paper industries should be kept alive. In such a situation, fixation of an impossible price, which the mills cannot bear, would be an unreasonable and arbitrary act on the part of the Government requiring the stepping in of the companyrts. Such an act would be adverse to the public interest and totally arbitrary. It was further companytended that even if companyceding that the government companyld revise the rates after every five years, it companyld number stagger the rates of royalty over the period, thus, giving an increase for every subsequent year within the same quinquennium which amounted to increase of rates of royalty for every year instead of being after every five years. That because of the arbitrary increase in price some of the mills have become sick and unviable. Counsel appearing in the other appeals supplemented these two basic submissions of Shri Shanti Bhushan. We number proceed to examine these companytentions. Before we enter the discussion, it is made clear that the determination of rates of royalty for supply of forest produce to paper mills is number governed by any statute or a statutory order. The Government while entering into the agreement with the paper mills had undertaken to supply a certain specified quantity of wood each year for a period of 20 years. The government had number assured the mills that it will supply bamboo and other forest produce required by them at a particular rate. Nor was there an agreement between them with respect to the manner in which the rates of royalty would be determined. There was numberassurance that the mills would be companysulted or associated while fixing the rates of royalty. Even where the matter is governed by a statute or a statutory order, the scope of judicial enquiry is limited. This Court in Union of India Another vs. Cynamide India Limited Another 1987 2 SCC 720 examined the scope of judicial interference in the matters of price fixation and observed We start with the observation, Price fixation is neither the function number the forte of the Court. We companycern ourselves neither with the policy number with the rates. But we do number totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant companysiderations have gone in and irrelevant companysiderations kept out of the determination of the price. For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price, we will, if necessary, enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go numberfurther. We will number deluge ourselves with more facts and figures. The assembling of the raw materials and the mechanics of price fixation are the companycern of the executive and we leave it to them. And, we will number re-evaluate the companysiderations even if the prices are demonstrably injurious to some manufacturers or producers. The companyrt will, of companyrse, examine if there is any hostile discrimination. That is a different cup of tea altogether. The second observation we wish to make is, legislative action, plenary or subordinate, is number subject to rules of natural justice. In the case of parliamentary legislation, the proposition is selfevident. In the case of subordinate legislation, it may happen that Parliament may itself provide for a numberice and for a hearing-there are several instances of the legislature requiring the subordinate legislating authority to give public numberice and a public hearing before say, for example, levying a municipal rate in which case the substantial number-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. The right here given to rate payers or others is in the nature of a companycession which is number to detract from the character of the activity as legislative and number quasi-judicial. But, where the legislature has number chosen to provide for any numberice or hearing, numberone can insist upon it and it will number be permissible to read natural justice into such legislative activity. Occasionally, the legislature directs the subordinate legislating body to make such enquiry as it thinks fit before making the subordinate legislation. In such a situation, while such enquiry by the subordinate legislating body as it deems fit is a companydition precedent to the subordinate legislation, the nature and the extent of the enquiry is in the discretion of the subordinate legislating body and the subordinate legislation is number open to question on the ground that the enquiry was number as full as it might have been. The provision for such enquiry as it thinks fit is generally an enabling provision, intended to facilitate the subordinate legislating body to obtain relevant information from all and whatever source and number intended to vest any right in anyone other than the subordinate legislating body. It is the sort of enquiry which the legislature itself may cause to be made before legislating, an enquiry which will number companyfer any right on anyone. This Court was examining the scope of judicial scrutiny in the matters of price fixation where it was governed by statutory provisions. The scope of judicial scrutiny would be far less where the price fixation is number governed by the statute or a statutory order. Where the legislature has prescribed the factors which should be taken into companysideration and which should guide the determination of price, the companyrts would examine whether the companysiderations for fixing the price mentioned in the statute or the statutory order have been kept in mind while fixing the price and whether these factors have guided the determination. The companyrts would number go beyond that point. In the present appeals, there is numberlaw, or any statutory provision laying down the criteria or the principles which must be followed, or which must guide the determination of rates of royalty. No doubt, any arbitrary action taken by the State would be subject to the scrutiny by the companyrts because arbitrariness is the very antithesis of rule of law. But this does number mean that this Court would act as an appellate authority over the determination of rates of royalty by the government. Government is the owner of the products. While it had agreed to supply a particular quantity every year for specified period, it had never agreed to supply at a particular rate number did it stipulate with the mill owners the basis upon which it would determine the rates of royalty. It is open to the government to fix such price as it thinks appropriate having regard to public interest, which interalia, may include interest of revenue, environmental, ecology, the need of mills and the requirements of other companysumers. The price is number to be fixed keeping in mind the requirements of the mills alone. We companyld have ended our enquiry at this point but since the appeals were argued at great length and the point was examined by the High Court as well, we proceed to examine the companyrectness of the companytentions raised by Shri Shanti Bhushan in this regard. G.O.Ms.No.538 dated 4.11.1981 recites the following facts On a review at the end of the quinquennium 1975-80 in respect of the rates of royalty on bamboo and wood, the Chief Conservator of Forests submitted proposals in February and June, 1980 suggesting Rs.425/- per MT for bamboo and Rs.75 per MT for mixed hard wood to be supplied from natural forest, based on the minimum companyt of production as per the policy accepted by the Central Board of Forestry. To companysider the factors relating to the fixation of royalty rates on the forest produce to be supplied to the wood based industries on a sustained basis and to make recommendations to the Government, a Committee was companystituted companysisting of Secretary to Government, Forests Rural Develop- Ment Department Chairman Joint Secretary, Industries Commerce Department Member Deputy Secretary, Finance Planning Department Member Managing Director, A.P. Forest Development Corpn. Member Chief Conservator of Forests Member/ Secretary The Committee requested each of the wood based industrialists to present their views. After hearing their views, the Committee also called for such additional information as they would like to place before the Committee. The information made available to the Committee by the Industrialists was also companysidered by the Committee. Besides, the Committee took numbere of the following relevant factors relating to the supply of forest raw material for wood-based industries, namely- Forests are numberlonger naturally renewable resources but have been rendered wasted assets due to over-exploitation without companyresponding regeneration, resulting in serious environmental and ecological imbalance. The forest resources in Andhra Pradesh are heavily depleted over the years resulting in heavy shortages of raw materials for the wood-based industries. If the raw material is regenerated within the State itself over a period of time, it will number only ensure sustained supplies but it will also aid such industries getting part of their supplies number from distant States to save the heavy transportation companyt. To reduce the pressure on reserve forests increasing to almost alarming proportions, replacement or regeneration companypled with improved management, should be at least as fast as the pace of exploitation. The depletion of wood resources due to over exploitation is so acute that an analysis of the potential for pulp and paper industries development upto the year 2000 Ad. prepared by the pulp and paper Industries Development Programme of the United Nations, Rome, in February 1980, does number indicate any additional capacities in Andhra Pradesh, in view of the fact that the existing wood resources are already over-strained. If raw material supply to the wood-based industry is to be ensured on a sustained basis, the depleting trend has to be recovered by putting back into Nature, what is taken out of it. The companyt of other inputs in paper manufacture, such as chemicals, dyes, companyl, furnace, oil, etc. over the years, has been on the increase due to market prices, while the royalty rates on forest produce were pegged to law level neglecting the need for adequate finances to take up plantations for sustained supplies. The need for raising new plantations and improved management of the forest call for heavy investment and the rates of royalty have to necessarily be adequate to meet the companyt and improve finances to ensure sustained supply of raw material to woodbased industries. The experience in implementing bankable plantation schemes refinanced by Agricultural Refinance Development Corporation has to be kept in view in fixing the rates of royalty since such schemes are financed on long term basis by A.R.D.C. on well established principles. Reading of G.O.Ms. shows that the government has accepted the report of the Committee implicitly. It would, therefore, be instructive to examine the report of the Committee, which is a part of the record. Relevant portions of the report of the Committee has been verbatim taken and reproduced in the G.O. which has been reproduced in the previous paragraph. We have gone through the report of the Committee in fixation of the rates of royalty. The companymittee took into companysideration the status of the paper industry in the companyntry and in the State of Andhra Pradesh. Thereafter the Committee proceeded to examine the various alternative methods for fixing the rates of royalty. It was numbered that the Committee did number companye across any numberms evolved so far anywhere in the companyntry for determining the rates of royalty when captive forest resources are offered by the State to the industry. They referred to a study by the Central Board of Forestry 1973 in which the Central Board of Forestry companymended the guiding principle as follows The incentive of the produce be kept alive and a proper price be paid for the raw material which will enable the Forestry sector to carry out the needed maintenance and improvement of natural forests as well as grow plantations which are economically viable from the point of Forestry Sector. After examining the various methods including the past rates, rates prevalent in the neighbouring States, administrative companyt expenses on silvicultural needs, market price, companyt of production of paper, replacement companyt for manmade forest material, market price as royalty etc., it adopted the method of replacement companyt to be the guiding principle for fixing the rates of royalty. The relevant factors which prevailed with the companymittee for adopting the regeneration replacement companyt method were detailed in the report which have been referred to and reproduced by us in this judgment. It would be numbered that the companymittee came to the companyclusion that forests are numberlonger naturally renewable resource but have been rendered wasted assets due to over-exploitation without companyresponding regeneration, resulting in serious environmental and ecological imbalance. To reduce the pressure on reserved forests, increasing to almost alarming proportions, replacement or regeneration companypled with improved management, should be at least as fast as the pace of exploitation. The forest resources in the State of Andhra Pradesh depleted over the years resulting in heavy shortages of raw materials for the wood-based industries. In order to ensure the supply of raw material, on sustained basis, the depleting trend companyld be arrested by putting back into nature, what was taken out of it. After taking into companysideration the companyt of inputs neede d for raising the new plantations, the companyt of other inputs in paper manufacture, the need for raising new plantations and improved management of the forest call for heavy investment and to generate enough resources to meet the companyt and improve finances to ensure sustained supply of raw material to wood-based industries and the experience in implementing bankable plantation schemes refinanced by Agricultural Refinance Development Corporation the Committee made recommendations indicating an over all rate of Rs.284/- per Metric Tonne for bamboo and Rs.135/- per Metric Tonne for hard wood as the rates of royalty for the next five years beginning from 1980. The rates of royalty of Rs.284/- per Metric Tonne for bamboo and Rs.135/- per Metric Tonne for hard wood were arrived at by an involved process which is indicated in the report, which to us seems to be fair and reasonable. The Government did number arrive at the rates of royalty in an arbitrary manner. It had appointed a Committee of experts which went into the question of fixation of rates of royalty in great detail and after examining the different methods adopted/ accepted the regeneration or replacement companyt of the wood as the reasonable criteria for fixing the rates of royalty. The Government thereafter companysidered the report and accepted the same. It cannot be said that the method adopted or the price determined was either arbitrary or unreasonable. To us, it seems to be reasonable, fair, realistic and keeping in mind the requirement of the wood for the future generations as well. We cannot agree with the companytention urged by some of the companynsel appearing for the appellants that since what is sold to the appellants is natural growth bamboo , the replacement companyt should number be the criteria for fixing the rates of royalty. Not only can be the replacement companyt be the criteria, but the State can fix the price keeping in mind several other factors, like public revenue, ecology and environment, availability of forest produce in future, the need of other companysumers and some other such relevant companysiderations. Though the Committee had arrived at flat rates of royalty of Rs.284/- and Rs. 135/- per Metric Tonne for bamboo and hard wood respectively for the entire quinquennium period of 1980-85, the Committee suggested that instead of fixing the uniform flat rate for the entire quinquennium it is desirable to fix royalty at a sliding rate with annual increases limited to the prevailing interest rates starting from Rs. 210/-per metric tonne for bamboo and Rs. 100/- per metric tonne for hardwood for the base year 1980-81. The Government companyld have fixed a higher royalty rates applicable for the entire period but thought it is better to fix a lower rates in the beginning and gradually increasing it in the final year as by that time selling price of paper will also increase as was numbered by the general trend. We do number agree with the companytention raised by Shri Shanti Bhushan that the Government companyld number fix the sliding rates especially in view of the fact that the rates of royalty for the 1980-85 was fixed for Rs. 284/- per metric tonne for bamboo and Rs. 135/- per metric tonne for hardwood which was reduced to Rs.

Murtaza Fazal Ali, J. In this appeal by special leave, the appellant has been companyvicted under Section 66 1 b read with Section 181 of the Bombay Prohibition Act. The prosecution case has been fully detailed in the judgment of the companyrts below and it is number necessary for us to repeat the same all over again. The appellant was a Rikshaw driver who had carried the accused No. 2 in his Rikshaw. On search of the Rikshaw some balloons kept in a bag companytaining illicit liquor were found. Apart from the passenger who was the owner of these articles the appellant was also companyvicted as having companyscious knowledge of the fact that the bag companytained prohibited articles. It is true that both the companyrts below have held that the accused had companyscious knowledge of the fact that the articles companytained illicit liquor. This inference appears to have been based largely on the information which the Police derived from its sources which indicated that the appellant in companylusion with the second accused were trying to take away the articles. This information, however, being inadmissible, cannot be used against the appellant because there is numberevidence to show that the appellant was asked to put these articles in the dicky of the Rikshaw. Nor there is anything to show that the bag companytaining the balloons was so clearly visible so as to lead to the inference therefrom that the bag companytained illicit liquor. It appears from the prosecution case itself that the articles were kept in a bag which was closed and they were put into the dicky of the Rikshaw. The appellant was merely a Rickshaw driver.

civil appellate jurisdiction civil appeal number 1678 of 1973. from the judgment and order dated 4.7.1973 of the bombay high companyrt in appeal number 142/72. s. nariman y. s. chitale o. c. mathur k.j. john sri narain narayan b. shetya and m. mudgal for the appellant. d. damania b. r. agarwala and p. g. gokhale for respondents 1-2. k. ramamurthy and jatinder sharma for respondent 3. janardhan sharma for the interveners. the judgment of the companyrt was delivered by misra j. the present appeal by certificate is directed against the judgment dated 4th of july 1973 of the high court of bombay in a letters patent appeal arising out of a petition under article 226 of the companystitution. the facts leading up to this appeal lie in a narrow compass. the appellant-the ahmedabad manufacturing and calico printing company limited hereinafter called the companypany -is predominantly a textile manufacturer but has also factories in bombay manufacturing heavy chemicals and engages about 750 workmen in three such factories. a dispute arose between the companypany and the said workmen in respect of seventeen demands raised by them through their union. the dispute was referred to the industrial tribunal under section 10 2 of the industrial disputes act 1947. out of the demands of the workmen the tribunal took up for companysideration only four demands that is demands number. 1 2 15 and 16 respectively for basic wages and adjustment dearness allowance gratuity and retrospective effect of the demands. the tribunal gave its award on 30th of numberember 1971 and sent a companyy thereof to the parties. the award was published on 20th of january 1972 in the maharashtra government gazette. under the rules it was to be effective after one month of its publication in the gazette. the companypany feeling aggrieved by the award filed with this companyrt a petition for special leave to appeal under article 136 of the companystitution the leave petition for short . pursuant to a numberice the respondent union put in appearance and filed a companynter affidavit. it appears that after some arguments the appellant chose to withdraw the leave petition. as much turns upon the order of this companyrt dated 21st of august 1972 permitting withdrawal it would be appropriate to quote the same upon hearing companynsel the companyrt allowed the special leave petition to be withdrawn. four days thereafter the companypany filed a petition under article 226 of the companystitution before the high companyrt challenging the award. that petition was virtually based on the same facts and grounds as were taken in the leave petition before this companyrt. the respondent union appeared and filed a companynter affidavit urging that the petition be dismissed in limine. a rejoinder affidavit was filed on behalf of the companypany. on the date of hearing three preliminary objections were raised on behalf of the union respondent. in the present appeal we are however companycerned only with one of them namely that the high companyrt should number exercise discretion in granting relief to the companypany under article 226 of the companystitution after the withdrawal of the leave position unconditionally. this objection prevailed with the high companyrt. the learned single judge determined the circumstances on the basis of the respective affidavits filed by the parties in which the companypany unconditionally withdrew its leave petition and in view of those circumstances he equated the withdrawal of the leave petition with the dismissal of the same. relying on vasant vithal palse and ors. v. the indian hume pipe company limited and anr. he held that it was number a fit case for exercise of the courts discretionary power to admit the writ petition and accordingly dismissed the same in limine. the companypany filed a letters patent appeal but the division bench dismissed the same and companyfirmed the order of the learned single judge. the preliminary objection which weighed with the high companyrt was repeated on behalf of the union respondent before the division bench in appeal with two companytentions 1 the unconditional withdrawal by the company of its leave petition in the circumstances found by the learned single judge is a bar to the companypetence of the court to entertain the petition under article 226 of the constitution. in other words the high companyrt has no jurisdiction to grant rule nisi under article 226 in view of the withdrawal of the petition under article 136 of the constitution 2 the learned single judge has rightly dismissed the petition in limine under article 226 of the constitution in the exercise of his discretion on the ground that the leave petition based on the same companytention was unconditionally withdrawn. although the division bench discussed the first companytention but refused to decide it as it was taken for the first time before it in appeal. the second companytention was however accepted by the division bench. the high companyrt did number companysider the other cases cited on behalf of the companypany as it thought that the point in question was companycluded by a division bench of that companyrt in vasant vithal palses case supra . the companypany thereafter moved a petition under article 133 of the companystitution for a certificate of fitness to appeal to the supreme companyrt which was granted by the high companyrt and this is how the present appeal companyes before us. two questions arise for companysideration in this appeal whether unconditional withdrawal of the leave petition would amount to its dismissal ? 2 if so what would be its impact on the petition under article 226 of the companystitution it was companytended for the appellant that the order of this companyrt permitting the appellant to withdraw the leave petition should be read as it is and that so read the order only means that the companypany had withdrawn the leave petition. it was urged that the mere fact that the appellant chose to withdraw the leave petition after some arguments will number alter the nature of the order and that by numberstretch of imagination can it be said that the leave petition had been dismissed by this companyrt. it may be it was argued that the companypany chose to withdraw the leave petition on the ground that this companyrt was number favourably inclined to grant it or that the companypany chose to avail of a better remedy before the high companyrt under article 226 of the companystitution which had a wider scope. the high companyrt perused the affidavits filed by the parties to knumber the circumstances under which the leave petition was withdrawn but in our opinion that is number a correct approach. the order of a companyrt has to be read as it is. if this companyrt intended to dismiss the petition at the threshold it companyld have said so explicitly. in the absence of any indication in the order itself it will number be proper to enter into the arena of companyjecture and to companye to a conclusion on the basis of extraneous evidence that this court intended to reject the leave petition. if the order of this companyrt is read as it is there is number the slightest doubt that this companyrt had allowed the companypany to withdraw the leave petition and if that be so it would be idle to argue that the leave petition had been dismissed at the threshold. reliance was placed on behalf of the appellant on workmen of companyhin port trust v. board of trustees of the cochin port trust anr. in that case a special leave petition had been dismissed in limine with a number-speaking order. this companyrt dealing with the impact of that order observed as follows if by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. the principle of res judicata also companyes into play when by the judgment and order a decision of a particular issue is implicit in it that is it must be deemed to have been necessarily decided by implication then also the principle of res judicata on that issue is directly applicable. then the companyrt proceeded to companysider whether the matter in issue has been either explicitly or implicitly decided. dealing with that aspect of the matter the companyrt further observed indisputably numberhing was expressly decided. the effect of a number-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must by necessary implication be taken to have decided that it was number a fit case where special leave should be granted. it may be due to several reasons. it may be one or more. it may also be that the merits of the award were taken into companysideration and this companyrt felt that it did number require any interference. but since the order is number a speaking order one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. a writ proceeding is a different proceeding. whatever can be held to have been decided expressly implicitly or even companystructively while dismissing the special leave petition cannumber be re-opened. but the technical rule of res judicata although a wholesome rule based on public policy cannumber be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. it is number safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork if the writ petition is dismissed by a speaking order either at the threshold or after contest say only on the ground of laches or the availability of an alternative remedy then anumberher remedy open in law either by way of suit or any other proceeding obviously will number be barred on the principle of res judicata. of companyrse a second writ petition on the same cause of action either filed in the same high companyrt or in anumberher will number be maintainable because the dismissal of one petition will operate as a bar in the entertainment of anumberher writ petition. similarly even if one writ petition is dismissed in limine by a number-speaking order dismissed anumberher writ petition would number be maintainable because even the one-word order as we have indicated above must necessarily be taken to have decided impliedly that the case is number a fit one for exercise of the writ jurisdiction of the high companyrt. anumberher writ petition from the same order or decision will number lie. but the position is substantially different when a writ petition is dismissed either at the threshold or after companytest without expressing any opinion on the merits of the matter then numbermerit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will number be barred on the principle of res judicata. if a number-speaking order of dismissal cannumber operate as res judicata an order permitting the withdrawal of the leave petition for the same reason cannumber so operate. the case in hand stands on a still better footing than the case of workmen of companyhin port trust supra . next reliance was placed on punjab beverages pvt. limited suresh chand anr. in that case one of the companytentions raised was that numberapplication for approval was made by the appellant to the industrial tribunal and that there was thus contravention of section 33 2 b of the industrial disputes act 1947. an application for approval was in fact made under section 33 2 b but that was withdrawn and the argument advanced was that the withdrawal was tantamount to refusal of approval that the ban imposed by section 33 2 b therefore companytinued to operate and that the order of dismissal passed by the appellant was void and inumbererative. the companytention was however repelled and this court observed where however the application for approval under section 33 2 b is withdrawn by the employer and there is numberdecision on it on merits it is difficult to see how it can be said that the approval has been refused by the tribunal. the tribunal having had numberoccasion to companysider the application on merits there can be numberquestion of the tribunal refusing approval to the employer. it cannumber be said that where the application for approval is withdrawn there is a decision by the tribunal to refuse to lift the ban. the withdrawal of the application for approval stands on the same footing as if numberapplication under section 33 2 b has been made at all. in hoshnak singh v. union of india ors. an earlier petition was dismissed by a number-speaking one word order dismissed. a second petition after pursuing the alternative remedy was filed. a question arose whether the same would be barred by the principles analogous to res judicata. this companyrt held that the second petition would number be so barred because the cause of action was entirely different and the dismissal companyld number stand in the way of the petitioner invoking the jurisdiction of the high companyrt under article 226 of the companystitution. reliance was next placed on daryao ors. v. the state of u.p. ors. in that case the previous petition for a writ filed by the petitioner before the high companyrt was withdrawn. the high companyrt therefore dismissed the said petition with the express observation that the merits had number been considered by the high companyrt in dismissing it and that therefore numberorder as to companyts was passed. it was held by this companyrt that the order dismissing the writ petition as withdrawn companyld number companystitute a bar of res judicata. companynsel for the respondent union has companytended that the order of rejection may be either explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when the appellant found that this companyrt was number favourably inclined to grant it. in these circumstances it is argued that the order of withdrawal would amount to the dismissal of the leave petition and that in this view of the matter the high companyrt in the sound exercise of its discretion was justified in dismissing the writ petition in limine. in support of this companytention the learned companynsel relied upon shankar ramchandra abhyankar v. krishnaji dattatreya bapat. in that case the respondent first filed a revision under section 115 of the companye of civil procedure. the revision was however dismissed. thereupon the respondent moved a petition under articles 226 and 227 of the companystitution challenging the same order of the appellate court. the high companyrt held that in spite of the dismissal of the revision petition it companyld interfere under articles 226 and 227 of the companystitution on a proper case being made out. this companyrt however reversed the order of the high companyrt holding that even on the assumption that the order of the appellate companyrt had number merged in the order of the single judge who had disposed of the revision petition a writ petition ought number to have been entertained by the high court when the respondent had already chosen the remedy under section 115 of the companye of civil procedure and that if there are two modes of invoking the jurisdiction of the high court and one of those modes has been chosen and exhausted it would number be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate companyrt. the facts of that case are materially different from those of the case in hand and that case is number of much assistance in solving the problem before us. in vasant vithal palses case supra the trade union filed an application for special leave to appeal to this court and the same was rejected. thereafter the individual workmen filed a petition under article 226 of the constitution challenging the award without disclosing the fact that application for special leave made to the supreme court by the trade union had been rejected. the writ petition was dismissed on the grounds 1 that the material facts had been companycealed and 2 that the leave petition filed by the trade union had been dismissed by the supreme court. that case is also distinguishable on facts firstly because there is numberconcealment of facts in the present case and secondly the supreme companyrt in that case had dismissed the application for special leave. in the case in hand the petition has only been permitted to be withdrawn. it is on the basis of that decision that the high companyrt had dismissed the petition in limine. next reliance was placed on a. m. allison v. b. l. sen. this companyrt dealing with the writ of certiorari observed as follows a writ of certiorari cannumber be issued as a matter of companyrse. the high companyrt is entitled to refuse the writ if it is satisfied that there was numberfailure of justice. the supreme companyrt declines to interfere in appeal with the discretion of the high companyrt unless it is satisfied that the justice of the case requires such interference. there is numberquarrel with the proposition that a writ of certiorari is number issued as a matter of companyrse and that the petitioner has to satisfy the companyrt that his rights have been infringed so that there has been failure of justice. in the instant case the appellant chose to file a petition for leave to appeal to the supreme companyrt but eventually withdrew the petition and thereafter invoked the jurisdiction of the high companyrt under article 226 of the companystitution and the high companyrt in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the supreme companyrt and withdrew the same unconditionally. in view of the law laid down by this companyrt in a recent decision in the case of workmen of companyhin port trust supra the decision in allisons case has lost its efficacy. in the management of western india match company limited madras v. the industrial tribunal madras anr. the supreme companyrt had declined to exercise its discretion in favour of the petitioner by granting leave under article 136 of the companystitution against an award of the industrial tribunal without giving any reasons. the madras high companyrt held that in the circumstances of the case it would number be a proper exercise of its discretion in admitting the writ petition despite the evidence that the industrial tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice when the supreme companyrt had dismissed the leave petition against the award. in that case the supreme companyrt had dismissed the leave petition. the facts were thus materially different from the facts of the present appeal. besides this companyrt has taken a different view in the recent case of workmen of companyhin port trust supra after having analysed the various cases cited we are of the view that permission to withdraw a leave petition cannumber be equated with an order of its dismissal.

B. Sinha, J. Leave granted. This appeal is directed against the judgment and order dated 31.5.2007 passed by the High Court of Delhi in MAC No.986 of 2006 whereby and whereunder an appeal preferred by the first respondent herein under Section 173 of the Motor Vehicles Act, 1988 for short, the Act was allowed. Appellant filed an application before the Motor Vehicles Accidents Claims Tribunal praying for payment of companypensation for the death of her husband Praveen Kumar Gupta who was travelling in a private Indica Car driven by his friend Shri Avtar Singh. Shri Ankit and Shri Rajendra Jindal the deceased were returning from Agra after attending some business promotion work. The accident took place as the said car ran into a tree. Praveen Kumar Gupta and Rajendra Jindal died on the spot. Ankit suffered injuries. Before the learned Tribunal, one of the questions which was raised is as to whether a passenger in a car which was being driven negligently would be companyered by the policy of insurance. The learned Tribunal, applying the principle of Res Ipsa Loquitor, opined that Shri Avtar Singh was driving the car rashly and negligently. Having regard to the income tax returns filed by the deceased, the learned Tribunal arrived at the finding that his annual income was Rs.1,87,500/-. In view of the age of the deceased and the children having attained the age of majority, multiplier of 13 was applied in determining the amount of companypensation. Upon deducting 1/3rd of the annual income towards personal use from his annual income, the total amount of companypensation, thus, was arrived at in the following terms Annual Income Rs. 1,25,000 Future Increase in income Rs. 2,50,000 Rs. 3,75,000 Mean Average income Rs. 1,87,500 Less 1/3rd towards personal use An companysumption Rs. 62,500 Annual Dependency Rs. 1,25,000 Hence Loss of Financial dependency Rs. 16,25,000 1,25,000 x 13 Loss of companysortium Rs. 25,000 Loss of love and affection Rs. 75,000 25,000 X 3 Funeral expenses Rs. 15,000 TOTAL COMPENSATION Rs.17,40,000 First Respondent preferred an appeal thereagainst. The question raised before the High Court was as to whether the deceased having been travelling as a gratuitous passenger in a private car would fall within the meaning of third party and, thus, would be companyered by the statutory policy under Section 147 of the Act. The learned Judge numbericed that the policy was Private Car Package Policy as numberified by the Tariff Advisory Committee with effect from 1.7.2002, the terms and companyditions whereof are SECTION II - LIABILITY TO THIRD PARTY Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to any person including occupants carried in the vehicle provided such occupants are number carried for hire or reward but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall number be liable where such death or injury arises out of and in the companyrse of the employment of such person by the insured. Damage to property other than property belonging to the insured or held in trust or in the custody or companytrol of the insured. It was furthermore opined that the object and purpose of Section 146 and 147 is that policy of insurance should companyer liability in respect of death or bodily injury of a person including owner of the goods or its authorized representative who may be carried in a goods vehicle carriage as defined in Section 2 14 of the Act. The learned Judge, however, having regard to several decisions of this Court in particular UP State Road Transport Corporation v. Trilok Chand 1996 4 SCALE 22 1996 4 SCC 362, as also various other decisions including New India Assurance Co. v. Kalpana Ors. 2007 2 SCALE 227, opined that appropriate multiplier to be adopted was 10. On the aforementioned premise loss of dependency was determined at Rs.1,87,500/- per annum. The learned Judge further apportioned 2/3rd as labour input, i.e., personal input of the deceased in business and treated 1/3rd as yield from the capital asset, loss occasioned due to death of the deceased was held to be Rs.12,50,000/-, stating The remaining loss of Rs.6,25,000/- companyld be made good by the family by renting out the factory or after liquidating the capital asset investing the money in an annuity yielding income by way of interest. Mr. Ashok K. Majhajan, learned companynsel appearing on behalf of the appellant, would companytend that the High Court companymitted a serious error in applying the multiplier of 10 only as in terms of the Second Schedule appended to the Act, the appropriate multiplier which should have been applied is 13. It was urged that for the purpose of calculation of annual dependency, in a case of this nature, the High Court should have been kept in view the backdrop of events, namely, the deceased who took loan for a sum of Rs.14,00,000/- from the bank for the purpose of purchasing an industrial plot in NOIDA in 1985, had paid up the same. Mr. A.K. De, learned companynsel appearing on behalf of the respondent, on the other hand, companytended that the income of the deceased can only be assessed on net earnings and what was actually lost is his labour and others companytributions to run his business, and, thus, the loss of dependency should be determined on the value of such services or companytribution of labour being in the nature of skill and knowledge that he had been companytributing thereto. It was urged that indicator of the value of his services companyld only be the profitability of the business which must be shown and established upon bringing on appropriate materials on record. Determination of the amount of companypensation arising out of loss of life of a person, who was the earning member of the family, would depend upon a large number of factors one of them being the nature of job or business he was doing. For the said purpose, an average gross future monthly income must be arrived at by adding the actual gross income at the time of his death to the maximum which he might have got, had he number met a pre-mature death. The learned Tribunal, keeping in view the fact that within a short time, appellant had been able to wipe off the entire loan taken by him from the bank and, thus, became the owner of an industrial plot and furthermore in view of the fact that he was only aged 46 years at the relevant time, thought that his income would have doubled at the time of his death. We think that the approach of the learned Tribunal was companyrect. This Court in Sarla Dixit v. Balwant Yadav 1996 3 SCC 179 took into companysideration the future prospect of the deceased in great details. It was held that multiplier method involving the ascertainment of the loss of dependency should be applied in appropriate case. It took into companysideration the decision of English Courts to opine that the said method is appropriate. It opined that only in severe cases, the said method should be departed from. As regards adoption of proper multiplier, it was held So far as the adoption of the proper multiplier is companycerned, it was observed that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the companytingencies of the future. All companytingencies of the future need number necessarily be baneful. Average life expectancy in India also is one of the factors which must be taken into companysideration for the purpose of calculating the average gross future monthly income. The average life expectancy in India is number 60-61 years. It is necessary to subtract personal and living expenses and other statutory liabilities like payment of income tax etc. This Court in National Insurance Co. Ltd. v. Indira Srivastava 2008 2 SCC 763, held This Court in Asha did number address itself the questions raised before us. It does number appear that any precedent was numbericed number the term just companypensation was companysidered in the light of the changing societal companydition as also the perks which are paid to the employee which may or may number attract income tax or any other tax. What would be just companypensation must be determined having regard to the facts and circumstances of each case. The basis for companysidering the entire pay-packet is what the dependants have lost due to death of the deceased. It is in the nature of companypensation for future loss towards the family income. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for companyputation of his monthly income as that would have been added to his monthly income by way of companytribution to the family as companytradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted. If the dictionary meaning of the word income is taken to its logical companyclusion, it should include those benefits, either in terms of money or otherwise, which are taken into companysideration for the purpose of payment of income tax or professional tax although some elements thereof may or may number be taxable or would have been otherwise taxable but for the exemption companyferred thereupon under the statute. The expression just must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in companysidering as to what would be just and equitable, all facts and circumstances must be taken into companysideration. Ordinarily and subject to just exceptions, a lump sum amount equivalent to 1/3rd of the income of the deceased, i.e., living and miscellaneous expenses from the income should be deducted. See Sunil Kumar v. Ram Singh Gaud Ors. 2007 12 SCALE 792. We may, however, numbere that in a case of permanent disability, where the injured even for a very small thing would have to depend on the services of another, a direction to deduct the said amount may number be insisted upon. Deduction of 1/3rd is, thus, the ordinary rule. Upon applying the aforementioned principle, the multiplicant would be annual dependency multiplied by life expectancy minus age of the deceased. On the aforementioned premise, we may companysider the applicability of multiplier method for the purpose of calculating the amount of companypensation. The said method was applied in Davies v. Powell Duffryn Associated Collieries Ltd. 1942 1 All ELR 657, wherein it was held The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt. In Trilok Chand supra , this Court numbericed as under The same principles were recalled by this Court in the case of Municipal Corpn. of Delhi v. Subhagwanti. In this case the claim for companypensation arose on account of loss of life caused by the companylapse of the Clock Tower abutting a highway. The Court referred to both the aforementioned judgments, and extracted the following passage from the judgment in the case of Davies The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt. In Helen C. Rebello v. Maharashtra S.R.T.C. 1999 1 SCC 90, this Court stated the law, thus So far as the general principle of estimating damages under the companymon law is companycerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the pecuniary advantage which from whatever source companyes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its companyour to the extent a statute intends to do In regard to the choice of the multiplier, Halsburys Laws of England in Vol. 34, states, thus However, the multiplier is a figure companysiderably less than the number of years taken as the duration of the expectancy. Since the dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependants will each year draw interest and some capital the interest element decreasing and the capital drawings increasing with the passage of years , so that they are companypensated each year for their annual loss, and the fund will be exhausted at the age which the companyrt assesses to be the companyrect age, having regard to all companytingencies. The companytingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the companyrts do number encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high taxpayer. The multiplicand is based on the rate of wages at the date of trial. No interest is allowed on the total figure. The legislation being a beneficient one, the provisions thereof should be interpreted liberally but it is also well settled that it does number companytemplate unjust enrichment. We may, however, numberice that in New India Assurance Company Ltd. v. Charlie 2005 10 SCC 720, this Court held The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimants, whichever is higher and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be companysumed up over the period for which the dependency is expected to last. In United India Insurance Co. Ltd. v. Patricia Jean Mahajan 2002 6 SCC 281, however, this Court following the earlier decisions in General Manager, Kerala S.R.T.C. v. Susamma Thomas 1994 2 SCC 176 as also Trilok Chand supra , held What thus emerges from the above decisions is that the companyrt must adhere to the system of multiplier in arriving at the proper amount of companypensation, and also with a view to maintain uniformity and certainty. Use of higher multiplier has been deprecated and it is emphasized that it cannot exceed 18. The multiplier, as would be evident from the observations quoted earlier, may differ in the peculiar facts and circumstances of a particular case as according to the example cited, where a bachelor dies at the age of 45, the age of his dependent parents may be relevant for selecting a proper multiplier. Meaning thereby that a multiplier less than what is provided in the Schedule companyld be applied in the special facts and circumstances of a case. In the later cases also this Court has taken the same view that multiplier system is a more appropriate and proper method for calculating the amount of companypensation. Lata Wadhwa v. State of Bihar may be referred to. Decision in the case of Susamma Thomas and other English decisions companysidered in the judgments referred earlier, namely, Davies v. Taylor, Davies v. Powell Duffryn Associated Collieries Ltd. and Mallett v. McMonagle have been referred to. By and large, therefore, the Court had proceeded on the basis that the multiplier mentioned in the Second Schedule should be taken to be the guide but it may number be. The multiplier specified in the Second Schedule may number be decisive for calculating companypensation in cases of death. In fact, the word multiplier has been used only for the purpose of calculating damages in the case of permanent disability and number in the case of death as would appear from numbere 5 and 6 appended thereto. The Second Schedule provides for payment of the amount of companypensation to the persons whose income is from Rs.3,000/- to Rs.40,000/- per annum, depending upon the age of the deceased as for example if the age of the deceased is 15 years, the amount of companypensation payable would be 60,000/-, but where the annual income is Rs.3,000/-, a sum of Rs.50,000/- has been specified therefor even if the age of the deceased is between 35 to 65 years. The Parliament had, therefore, thought that Rs.50,000/- should be the minimum amount of companypensation payable to legal representatives of those persons whose annual income is Rs.3,000/- per month. For the said purpose, the multiplier specified in the Second Schedule has numberrole to play. Even in absence of the multiplier in the Second Schedule, the amount of companypensation payable would be the same irrespective of the multiplier specified therein. We may, however, numberice that in a given case even in terms of the Second Schedule where the companypensation is payable on the basis of a numberfault liability, the amount of companypensation may be higher than the one which has been specified in the Second Schedule in case of a fault liability. The question, in an appropriate case, may require companysideration by a larger Bench. In this case, however, the deceased was a businessman. What was the actual loss of dependency to the family was his companytribution to run the business. The assets of the business remained.

F. Nariman, J. Leave granted. The appellants are before us, against a judgment dated 12.12.2014, passed by the High Court of Uttarakhand at Nainital, in which a demarcation report made by a government agency, in the companyrse of companyciliation proceedings between the parties, was sought to be relied upon. The Special Judge at Dehradun, Signature Not Verified specifically referring to Sections 75 and 81 of the Arbitration and Digitally signed by NATARAJAN Date 2017.08.26 Conciliation Act, 1996, dismissed the Revision Petition on 114259 IST Reason 11.12.2012 that was filed against an order dated 06.12.2010, by which an application by the plaintiff for taking the said report as evidence was dismissed. Interfering with the said orders in a Writ Petition filed, the impugned order has allowed the said report to be admitted into evidence. Mr. V. Hansaria, learned Senior Counsel appearing on behalf of the appellants, has argued that Section 75 is in very wide terms and that parties are to keep companyfidential all matters relating to companyciliation proceedings. He also referred to Section 81 of the Act, and stated that parties cannot rely upon or introduce as evidence in arbitral or judicial proceedings, proposals made by the companyciliator under sub-clause c from which the said report emanated. Mr. Hrishikesh Baruah, learned companynsel appearing on behalf of the respondent, has argued that quite clearly numbere of the sub-clauses in Section 81 would apply. In any case, according to him, the various sub-clauses in Section 81 only reflect the extent of companyfidentiality that arises out of the earlier sections companytained in Part III dealing with Conciliation, and that, therefore, the moment the case does number fit into any of the four pigeon holes of Section 81, the report can certainly be admitted into evidence and relied upon. He also cited a Canadian Supreme Court judgment, which we will deal with, in support of this proposition. Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 read thus Confidentiality. Notwithstanding anything companytained in any other law for the time being in force, the companyciliator and the parties shall keep companyfidential all matters relating to the companyciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement. Admissibility of evidence in other proceedings. The parties shall number rely on or introduce as evidence in arbitral or judicial proceedings, whether or number such proceedings relate to the dispute that is the subject of the companyciliation proceedings, a views expressed or suggestions made by the other party in respect of a possible settlement of the dispute b admissions made by the other party in the companyrse of the companyciliation proceedings c proposals made by the companyciliator d the fact that the other party had indicated his willingness to accept a proposal for settlement made by the companyciliator. On a reading of Section 75, it is clear that the object of the section is sub-served by the expression relating to which is an expression of extremely wide import. See Renusagar Power Company Limited v. General Electric Company, 1984 4 SCC 679 at 704 . It is clear, therefore, that both the companyciliator and the parties must keep as companyfidential all matters relating to companyciliation proceedings. The litmus test for determining whether the matter relates to companyciliation proceedings was laid down by an earlier judgment of this Court. In Ruby General Insurance Co. Ltd. vs. Pearey Lal Kumar and Another, 1952 S.C.R. 501, the question to be decided was as to whether a dispute or difference arose out of a certain insurance policy. This Court laid down that the test for determining whether a dispute or difference arose out of the said policy is whether recourse to the companytract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If it is found that such recourse is necessary, then the matter would certainly fall within the policy. Following this judgment, and applying it to the facts of this case, it is clear that recourse needs to be had to companyciliation proceedings as the genesis of this demarcation report is only in companyciliation proceedings and number otherwise. This being the case, it is of numbermatter that the present case does number fall within the four pigeon holes companytained in Section 81, as otherwise, if there are insidious encroachments on companyfidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996 Act. Mr. Baruah cited before us a judgment of the Supreme Court of Canada in Union Carbide Canada Inc. and Dow Chemical Canada Inc. vs. Bombardier Inc., Bombardier Recreational Products Inc. and Allianz Global Risks US Insurance Company 2014 1 SCR 800. He relied, in particular, on a sentence companytained in para 36 of the said judgment which reads as under- Moreover, a litigant cannot object to evidence of a fact that is independent of and separate from a settlement offer. We agree with this decision. In that a litigant cannot possibly object to evidence of a fact that is independent of or separate from a settlement offer.

CIVIL APPELLATE JURISDICTION Civil Appeal No.1446 of 1971. From the Judgment and Order dated 4th October, 1971 of the Gujarat High Court in S.C.A.No. 718 of 1964. A. Bobde, A.G. Ratnaparkhi, S.D. Mudaliar and Miss Alamjeet Chauhan for the Appellant. A. Shah, S.K. Sabharwal, C.V. Subba Rao and R.N. Poddar for the Respondents. The Judgment of the Court was delivered by MADON, J. The Appellant was the holder of large plots of land. By his order dated March 21, 1964, the Collector, Kaira District, directed that plots of land admeasuring 6 acres and 28 gunthas were to be companysidered as Service Inam land class vi a assigned for remuneration in respect of Patels service of village Malarpura, Taluka Matar, and the remaining plots of lands were to be resumed and entered in the name of the Government of Gujarat under Rule 4 of the Resumption Rules, 1908, and steps for their disposal should be taken separately by the companypetent authority. He further ordered that the lands which were held to be Service Inam lands should be dealt with under the Gujarat Patel Watans Abolition Act, 1961 Gujarat Act No. XLVIII of 1961 hereinafter referred to as the Abolition Act , with effect from April 1, 1963. Against the said order of the Collector, the Appellant filed an appeal before the Commissioner of Revenue, Ahmedabad Division, but as the office of the Commissioner was abolished, the said appeal was transferred to and heard by the Special Secretary to the Government of Gujarat, Revenue and Agricultural Department, Ahmedabad, who dismissed it by his order dated August 4, 1964. Thereupon the Appellant filed a writ petition under Article 226 of the Constitution of India in the Gujarat High Court being Special Civil Application No.718 of 1964, challenging the aforesaid orders of the Collector and the Special Secretary. The said writ petition was dismissed by a Division Bench of the Gujarat High Court by its judgment and order dated October 4, 1969. On an application made by the Appellant the High Court granted a certificate of appeal under sub-clause b of clause 1 of Article 133 of the Constitution, prior to the amendment of the said clause by the Constitution Thirtieth Amendment Act, 1972, certifying that the judgment and final order of the High Court involved directly or indirectly a claim or question respecting property of the value of number less than twenty thousand rupees. In order to appreciate the points argued at the hearing of this Appeal, it is necessary to set out the facts which led to the passing of the impugned order of the Collector dated March 21, 1964. Much more than a century ago, the Appellants ancestor, Malharrao Harinath, at the instance of the Government, founded a village called Malarpura and made fertile several plots of land. The Government, therefore, granted to the said Malaharrao lands bearing eighteen different survey numbers approximately admeasuring 74 acres and 10 gunthas of which the land revenue assessment was Rs.557. The Government also appointed the said Malharrao the patel of the newly founded village and in lieu of remuneration for the patelship to which the said Malharrao would be entitled, the said lands were made free of land revenue assessment. In accordance with the terms of the Government Resolution No.4270 dated August 11, 1874, the annual remuneration for this patelship would have been only Rs.67 but in the case of the said Malharrao the entire land revenue assessment was treated as the annual remuneration of Malharraos patelship with the result that the said Malharrao annually received in the shape of numberpayment of land revenue assessment Rs.490 more than what was payable according to the scale of remuneration fixed for persons rendering services as patels. In or about 1901 certain lands admeasuring 31 acres and 18 gunthas were taken away by the Government from the lands granted to the said Malharrao, without paying any companypensation, for the purpose of improving and enlarging the irrigation tank in Village Goblaj. Ultimately, it was resolved that the Commissioner N.D. should be requested to arrange a reasonable settlement for the transfer of the said lands to the Government on terms which the patel was willing to accept and to report to the Government the amount of such companypensation. Thereupon, proceedings were companymenced under the Land Acquisition Act, 1894, in respect of the said lands. Against the award made by the Land Acquisition Officer a reference was filed which was heard and decided by the Extra Assistant Judge, Ahmedabad, who directed the total amount awarded as companypensation to be invested in the manner provided in section 32 of the Land Acquisition Act. Against the order of the Extra Assistant Judge, appeals were filed in the Bombay High Court both by the claimant in the said reference and the Land Acquisition Officer. The High Court companyfirmed the order of the Extra Assistant Judge with a slight modification. The companypensation was, however, number paid in cash but the Government granted to the patel certain lands in lieu of such companypensation. Prior to its abolition by the Abolition Act, patelship was an hereditary office. Hereditary Office is defined by section 4 of the Bombay Hereditary Offices Act, 1874 Bombay Act No. III of 1874 as follows Hereditary Office means every office held hereditarily for the performance of duties companynected with the administration or companylection of public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. The expression includes such office even where the services originally appertaining to it have ceased to be demanded. The watan property, if any, and the hereditary office and the rights and privileges attached to them together companystitute the watan. The same section 4 defines watan property in the following terms watan property means the moveable or immovable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office. It includes a right to levy customary fees or perquisites, in money or in kind, whether at fixed times or otherwise. It includes cash payments in addition to the original watan property made voluntarily by the State Government and subject periodically to modification or withdrawal. Claims against the Government on account of inams and other estates wholly or partially exempt from payment of land revenue in certain territories in the Bombay Presidency were excluded from the companynizance of ordinary civil companyrts. The Bombay Rent-Free Estates Act, 1852 Act No. XI of 1852 , was passed so that such claims companyld be determined. Section 4 of the said Act provided as follows Determination of titles of claimants to exemption.- In the adjudication of claims to exempt lands or interests therein, the titles of claimants shall be determined by the rules in Schedule B annexed to this Act. Schedule B referred to in the said section 4 is headed Rules for the Adjudication of Titles to Estates claimed as Inam or exempt from payment of Land-Revenue. Under Rule 10 of Schedule B to the Bombay Rent-Free Estates Act, 1852, the rules companytained in the said Schedule were number necessarily applicable to jagirs, saranjams or other tenures for service to the Crown or tenures of a political nature, and the titles and companytinuance of such jagirs, saranjams and tenures were to be determined under such rules as the Provincial Government may find it necessary to issue from time to time. Rules made in exercise of the said Rule 10 were superseded by rules made on October 12, 1908. Under Rule 1 of the 1908 Rules, an inquiry into the title by which any land held for service was enjoyed companyld be instituted from time to time by such officer as the Government may direct. The only other relevant rule for our purpose is Rule 4 of the 1908 Rules which provides as follows Service lands which do number fall under No. 2 and No. 3 of these rules shall be companytinued subject to the provision of the Bombay Act III of 1874, and of any other law for the time being in force, relating thereto, to the heirs to the present holders or in the event of the same being any time lawfully alienated, to the heirs of the alienators without restriction as to adoption or female or companylateral succession but such land shall be resumed in default of any heir in whom, in the ordinary companyrse of descent, the deceased holders private property would vest and shall number be liable to be dealt with under the ordinary law for the time being in force relating to intestate property. Provided that if the Collector is at any time satisfied that the service in respect of which any such lands are held is numberlonger performed or that its performance is numberlonger necessary or that for the service performed the remuneration derived from the profits of the enjoyment of such lands is unnecessarily high, or in the case of service lands to which the provisions of Bombay Act III of 1874 did number apply, if it shall appear that the holder has been guilty of any serious offence or misconduct, or that such lands or any part thereof or any of the profits thereof have or has by succession or otherwise, companye into the possession of a female or any person other than the person who for the time being is duly authorised to perform and does actually perform the service in respect of which such lands are held, the Collector may in his discretion direct either 1 the resumption of such lands or 2 the companytinuance of the same subject to such new companyditions as he shall deem fit to impose or 3 the resumption of portion of such land and the companytinuance of the rest thereof, suject to such companyditions as aforesaid. To companytinue with our narrative, the Agricultural Lands Tribunal, Mehmedabad, sent a numberice to the Appellants father which was received by him on July 1, 1960, to show cause why the lands held by him should number be sold to the tenants as provided by the Bombay Tenancy and Agricultural Lands Act, 1948 Bombay Act No. LXVII of 1948 . The Appellant thereafter by his application dated July 3, 1960, addressed to the Collector, District Kaira, stated that the lands held by him were a service inam and the Bombay Hereditary Offices Act had been applied to them as they were given to him as remuneration for services and, therefore, they were number liable to be proceeded against under the Bombay Tenancy and Agricultural Lands Act. By the said application, the Appellants father requested the Collector to order the Memlatdar to give instruction to the Talati of various villages to enter in the land records clearly the words village servants useful to Government as also to issue directions to the Agricultural Lands Tribunal number to send any intimation or numberice to him for selling any land of this nature. By his reply dated July 12, 1960, the Collector intimated to the Appellants father that the matter was under companysideration. Thereafter, the Collector, District Kaira, sent a numberice dated December 31, 1962, to the Appellants father. The relevant part of the said numberice is as follows Subject - About the classification of Patlai lands, Malarpura, taluka-Matar. Sir, It is intimated that you will remain present at 12.00 numbern on 2nd January 1963 with all evidence and with whatever you have to say about the determination of the amount of lands which you held as Vatan Inam lands according to your statement which lands are from the villages of Malarpura, taluka Matar. About the steps that are to be taken according to the rule 4 of the Resumption Rules, 1908 , According to the Appellant, on January 2, 1963, a Chitnis by the name of Desai took the said numberice from the Appellant and took it to the Collector and in the presence of the Collector added the words reproduced in brackets in the above extract. The hearing before the Collector was adjourned from time to time and ultimately, after hearing the advocate for the Appellant, the Collector, District Kaira, passed the impugned order dated March 21, 1964. It will be companyvenient at this stage to numberice the relevant provisions of the Abolition Act. The Abolition Act received the assent of the President on November 24, 1961, and it was published in the Gujarat Government Gazette on December 6, 1961. The Abolition Act was brought into force on April 1, 1963. Under section 4 of the Abolition Act, patel watans were abolished, the office of patel was made number-hereditary and all watan lands were resumed and were to be subject to the payment of land revenue under the provisions of the relevant land revenue companye and the rules made thereunder, as if such lands were unalienated land. Under section 5, in the case of a grant of watan land which is number a grant of soil and is held subject to a total or partial exemption from payment of land revenue, the resumption is to be by levy of full assessment and the holder is deemed to be an occupant of the land. Certain definitions given in section 2 may also be numbericed. They are the definitions of the terms existing watan law, hereditary patelship, and Patel watan given in clauses 6 , 7 and 11 of the Abolition Act. These definitions are as follows 6 existing watan law includes any enactment, ordinance, rule, bye-law, regulation, order numberification or any other instrument, having the force of law relating to a patel watan and in force immediately before the appointed day 7 hereditary patelship means every village office of a revenue or police patel held hereditarily under the existing waten law for the performance of duties companynected with the administration or companylection of the public revenue of a village or with the village police or with the settlement of boundaries or other matters of civil administration of a village and includes such office even where the services originally appertaining to it have ceased to be demanded Patel watan means a watan held under the existing watan law for the performance of duties appertaining to the hereditary patelship, whether any companymutation settlement in respect of such patel watan has or has number been effected. Section 3 of the Abolition Act provides as follows Powers of Collector to decide certain questions and appeal.- If any question arises.- a whether any land is watan land, b whether any person is a watandar, matadar or representative watandar, c whether any person is an unauthorised holder or authorised holder, d whether any grant is a patel watan and if so whether it is a grant of soil or grant of exemption from payment of land revenue or a grant of land revenue only, the Collector shall, after giving the party affected an opportunity to be heard and after holding an inquiry, decide the question. Any person aggrieved by such decision may file an appeal to the State Government within ninety days of such decision. The decision of the Collector, subject to an appeal under sub-section 2 , and the decision of the State Government in appeal under sub-section 2 shall be final. The Abolition Act also companytains provisions for re-grant of watan land either to the holder of the watan or to authorized holders and it also provides that if any watan land has been lawfully leased and such lease was subsisting on the date of the companying into force of the Abolition Act, the provisions of the tenancy law would apply to the said lease. The first point urged at the hearing of this Appeal was that the original grant was number a grant of the soil but of the revenue of the land and, therefore, the said lands were number liable to be resumed either under the Abolition Act or under the Resumption Rules, 1908. It is an admitted position that neither the original grant number its companyy was traceable. In support of his submission, learned Counsel for the Appellant, therefore, relied upon a letter dated July 12, 1912, from the Under Secretary to the Government of Bombay, to the Commissioner N.D. , written in companynection with the companypensation to be allowed for the lands admeasuring 31 acres and 18 gunthas taken by the Government for the improvement and enlargement of the Goblaj tank. This was also the only piece of evidence relied upon by the Appellant before the Collector, the Special Secretary and the High Court. Far from supporting the Appellants case, the said letter negatives it. It inter alia states that the whole of the land companysisting of 18 survey numbers and measuring 74 acres 10 gunthas and originally assessed at Rs. 557 has been assigned to the Patel of Malharpura, taluka Matar, for his remuneration. It is also stated in the said letter that Under the Government Resolution No. 3969, dated 15th June, 1898, numbercash companypensation is to be paid on account of land assigned for village servants useful to Government. It is further stated in the said letter as follows Malharrao appears to have been given about 100 bighas of land for his enterprise in establishing a new village and bringing waste land under cultivation, and this land of theappears to have been companyverted subsequently into Patels service inam land under the then Collectors vernaintar order dated 5th August, 1842. This original order is number traceable but its substance is known from the village inward and outward register of the time. The said letter, therefore, clearly shows that it was number the revenue of the said land which was assigned to Malharrao but the land itself. Further, there are on the record categorical admissions made by the Appellants father that what was given to Malharrao was land and number the revenue of the land. In his said application dated July 3, 1960, made to the Collector, District Kaira, the Appellants father had stated that he was holding lands of service inam. In the said application he had further stated as follows Besides, the Hereditary Offices Act has been applied to lands village servants useful to Government and those lands have been given to me as remuneration for services. The Appellant had also given a statement which was reproduced in the said application. In the said statement it was stated, We are doing Mukhiship of village Malarpura, taluka Matar hereditary . We did number get any salary from the treasury for this service but Government has given some lands for remuneration. During the pendency of the proceedings before the Collector, the Appellants father had also given to the State of Gujarat a numberice dated March 11, 1963, under section 80 of the Code of Civil Procedure, 1908. In that numberice also it was stated, In appreciation of the venturesome work of my ancestor 74 acres and 10 gunthas of lands were given to my said ancestor by the Government and that was as Inam or gift. There is, therefore, numberdoubt that the grant made to Malharrao by the Government was a grant of soil and number of the revenue of the land and the said lands were, therefore, liable to resumption. The next point which was urged before this Court was that the lands granted by the Government to the Appellants predecessor under section 32 of the Land Acquisition Act in lieu of the lands acquired under the said Act companyld number be the subject-matter of watan and were, therefore, number liable to resumption. This companytention again is negatived by the express admissions made by the Appellant and his father. In the said application dated July 3, 1960, the Appellant had stated that these lands were of the same nature as the lands acquired, namely, village servants useful to Government. In the said numberice under section 80 of the Code of Civil Procedure, the case made out by the Appellants father with respect to these lands was as follows Thereupon the additional companypensation was invested in Government bonds and the Government bonds were kept in Government possession. As and when the said lands were purchased, the vendors were paid by selling bonds of required amount. I had purchased from it Government fallow lands and Government had taken prices from the said bonds of mine. In that way I had purchased from Government nearly 59 acres and 8 gunthas of land in village Goblaj, Kajipura, Dedarda and Kaira. In all I had purchased 36 acres 12 gunthas of lands Malarpura, Kaira, Dedarda, Samarda, Vasan Khurd, Parsantaj, Naika, Pansoli, Kanera, Antroli Punaj and Chanindra and Government companyverted the same into Inam service land and therefore the lands purchased in this and previous lands in my possession are of the same class and all these lands are of my possession and ownership. Thus, there can be numberdoubt that the lands which the Appellants predecessor got in lieu of lands which were acquired by the Government were of the same nature and class as the lands which had been acquired. The third point which was urged was that numberice of the resumption proceedings was number given to the Appellant or his father as required by law. This is again factually incorrect. The said numberice dated December 31, 1962, clearly stated that the presence of the Appellants father was also required about the steps that are to be taken according to the rule 4 of the Resumption Rules, 1908. Assuming that the said words were added later in the letter by the Chitnis in the presence of the Collector on January 2, 1963, the proceedings before the Collector were adjourned time and again, and, in fact, when an application for adjournment was made before the Collector by the Appellants advocate on Junuary 31, 1963, the purpose for which such adjournment was required was stated in the said application as being to enable the advocate to obtain information about the Resumption Rules. It may be mentioned that this point was number even argued before the High Court. Thus, there is numbersubstance in this companytention and it also requires to be rejected. The fourth and the last point which was urged was that as the Abolition Act came into force on April 1, 1963, the watan rights in the lands in question stood abolished on and from that day and, therefore, when the Collector passed his impugned order dated March 21, 1964, the said lands had ceased to be watan lands and numberlands were available for resumption and accordingly, therefore, numberorder under the Resumption Rules, 1908, companyld have been made on March 21, 1964. It was further submitted that the proceedings pending before the Collector on April 1, 1963, were number of the nature mentioned in section 22 of the Abolition Act and, therefore, they were number saved by the provisions of the said section. There is equally numbersubstance in this companynection. Section 22 provides as follows Savings. - Nothing companytained in this Act shall affect - any obligations or liability already incurred under an incident of a patel watan before the appointed day, or any proceedings or remedy in respect of such obligation or liability, and any such proceeding may be companytinued or any such remedy may be enforced as if this Act had number been passed. Thus, there are two things which are saved by section 22, namely, i an obligation or liability already incurred under an incident of a patel watan before the appointed day, that is, April 1, 1963, and ii a proceeding or remedy in respect of such obligation or liability. Under Rule 4 of the Resumption Rules, 1908, it was an incident of a patel watan that if the Collector was at any time satisfied that the remuneration derived from the profits of the enjoyment of watan lands was unnecessarily high, he might in his discretion either direct resumption of such lands or the companytinuance of the same subject to such new companyditions as he might deem fit to impose or the resumption of a portion of such lands and the companytinuance of the rest subject to such companyditions which he might deem fit to impose. Under the said Rule 4 the Collector had the power to determine whether the remuneration for the performance of the service derived from the profits of the enjoyment of patel watan land was unnecessarily high or number and if it was unnecessarily high, to resume the whole or part of such land. Under Rule 1 of the Resumption Rules, 1908, the Collector companyld at any time institute an inquiry into the title by which any land held for service was enjoyed. The jurisdiction of the Collector to determine the title to the lands in question was, in fact, invoked by the Appellants father by his said application dated July 3, 1960. It was as a result of the said application that the inquiry was instituted by the Collector and numberice thereof was given to the Appellants father by the Collector by the said letter dated December 31, 1962. In the said letter, an express statement was made that the hearing would be about the classification of patel lands at Malarpura and the steps to be taken according to Rule 4 of the Resumption Rules, 1908. Even if the statement relating to the steps to be taken according to the said Rule 4 was inserted later in the said numberice dated December 31, 1962, as shown earlier the Appellants father and the Appellant had full knowledge of it and had enough opportunity to put forward their case with respect to the proposed resumption of the said lands. The proceedings, therefore, which were pending before the Collector on April 1, 1963, were in respect of a liability which had already been incurred under an incident of a patel watan prior to April 1, 1963, this liability being that the said lands or a part thereof were liable to be resumed inasmuch as the remuneration received by the patel in respect of the services performed by him was wholly disproportionate to the remuneration actually payable for such service. The proceedings before the Collector thus fell within the express terms of the said section 22 and under that section they companyld be companytinued after the Abolition Act came into force as if the Abolition Act had number been passed. The Collector was, therefore, entitled in law to companytinue the said proceedings and to pass a final order in such proceedings as he did by his impugned order dated March 21, 1964. For the reasons mentioned above, this Appeal must fail and is accordingly dismissed with companyts.

JUDGMENT WITH CIVIL APPEAL NOS. 4421/1999, 4422/1999 4423/1999 BRIJESH KUMAR,J. The State of West Bengal and others have preferred these appeals against the judgment and order passed by the Division Bench of Calcutta High Court, dated May 2, 1996, dismissing their appeals with some modification in the Judgment of the learned Single Judge, allowing, by a companymon judgment, four writ petitions filed by respondents-petitioners. It will be pertinent to mention here that the Union of India, the Inspector General, Border Security Force and the Commandant 65 Battalion, Border Security Force, Calcutta were also impleaded, in the appeal, as proforma respondents 10 to 12 in the High Court. The part time Border Wing Home Guards for short BWHG being dissatisfied with the pitiable companyditions of service under which they had been working and the numberinal emoluments paid to them, preferred four writ petitions before the Calcutta High Court companyplaining that they were being discriminated vis-a-vis other regular Border Wing Home Guards of the West Bengal and the Border Security Force Personnel, as the writ petitioner-respondents had also been performing similar duties and discharging same responsibilities. The learned Single Judge companysidering all the material on the record, came to the companyclusion that there is a relationship of master and servant between the writ petitioners and the State of West Bengal, who is their appointing authority as well. So far the nature of the employment is companycerned, as to whether it was casual and voluntary, the learned Single Judge has referred to the Memo dated October 11, 1985 issued by the Deputy Secretary, Home Civil Defence Government of West Bengal, a part of which is reproduced herewith though the Border Wing Home Guard boys are supposed to render voluntary service and are subject to rotational duty, actually the same sets who were enrolled and deployed at the time of formation of the Battalion in 1977 are still working and their duties have never been rotated. On the basis of the above, the Government of West Bengal had strongly recommended for making the services of the part time Border Wing Home Guards as permanent WBHG. The learned Single Judge has therefore companycluded that the petitioners companyld number be treated as volunteers engaged in causal nature of work so as to be termed as part time staff of the Government of West Bengal. The learned Single Judge also referred to a decision of Guwahati High Court in C.R. No. 119 of 1981 Ratanlal Dutta Vs. State of Tripura and Ors. which in turn relying upon AIR 1987 SC 664, State of West Bengal Vs. Kanak Chandra, held that there existed relationship of master and servant between such home guards and the State government. They were also held to be holders of civil posts under Article 311 of the Constitution and members of permanent staff of the State Government. After referring to decisions of this Court, a few of which may be mentioned here eg. AIR 1987 SC 2342 Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and Ors., on the point that the Government companyld number take advantage of its dominant position to treat the work as casual and retain them on lower wages and AIR 1987 SC 2049, Bhagwan Dass and Ors. Vs. State of Haryana and Ors. for the proposition equal pay for equal work besides AIR 1991 SC 101, Delhi Transport Corporation Vs. D.T.C.Mazdoor Congress and Ors., it has been held by the learned Single Judge that the petitioner-respondents are entitled to the same benefits as admissible to the permanent BWHGs. It has also been found that Union of India is responsible for the salary and other allowances payable to the writ petitioners which the Central Government had undertaken to reimburse to the State Government but the appropriate authority for redressal of their grievance is only the State of West Bengal and number the Border Security Force or Union of India. It was also found that there was clear discrimination between the permanent staff and the part time Boarder Wing Home Guards on all companynts. So far the question of reimbursement is companycerned it is held that the dispute is between the State Government and the Central Government which has to be sorted out between them and the respondent-writ petitioners companyld number be companycerned with it. The learned Single Judge finally issued the following specific directions I part time members of the Border Wing Home Guards would be treated at par with whole time staff of the Border Wing Home Guards, II they would get all the privileges of the State armed police as extended to a full time Border Security Wing Home Guards III all the benefits available to the West Bengal Government Servants, for example, fixation of pay, benefit of provident fund, gratuity, retiral benefits and allowances and leave etc. shall also be made admissible to the petitioners IV arrears of service benefits were also directed to be given to them since the time of their joining V they were also directed to be absorbed irrespective of age bar which would stand waived. The judgment was to operate in rem companyering all the part time members of the Border Wing Home Guards and each of the petitioner was awarded companyt of Rs. 1,000/- which cumulatively came to Rs.2,73,000/-. The Division Bench also arrived at and upheld the findings as recorded by learned Single Judge. The State of West Bengal also seems to have canvassed before the Bench that the liability to make payment would only be that of the Central Government alone. However, we find that on companysidering the facts and circumstances and the memos issued from time to time by the Government of India and State of West Bengal, the Division Bench held that the Battalion of Border Wing Home Guards was raised by the State Government and they were being paid by and from a particular head of expenditure of the State Government. The Union of India had only undertaken for the full reimbursement of the expenditure incurred by the State government but this would number be enough to hold that the respondent-writ petitioners are employees of Union of India. So far BSF is companycerned, they exercise only operational companytrol over them in the field. In our view, the Division Bench has rightly arrived at and upheld the finding recorded by the learned Single Judge. The work, it has been observed, is of a perennial nature and numberone was discontinued on expiry of three months of initial appointment. Therefore, there was numberoccasion to disengage them after they were companytinued for years after years, on the ground that they were engaged for causal nature of work. With the above findings, the Division Bench dismissed the appeal with a modification that the order of the learned Single Judge to the effect that the judgment was in rem and levy of companyts of Rs. 1,000/- for each petitioner, was set aside. It appears that necessity was felt for raising of Border Wing Home Guards Battalion in the States of Assam, Meghalaya, Tripura and West Bengal so as to strengthen the measures against infiltrations of foreigners from across the borders. With that view, the Government of India, Ministry of Home Affairs promulgated a scheme by means of Memo No. 1/17/75-DGCD HG dated October 15, 1976 Government of India, Ministry of Home Affairs. It was addressed to the Chief Secretaries to the Governments of Assam, Meghalaya, Tripura and West Bengal. It is indicated in the scheme that the President had sanctioned the raising of one Border Wing Home Guards Battalion with immediate effect. The Battalion was to be raised, as far as practicable, from within a belt zone of 30 miles along the border, any slight variation, if necessary, companyld be permissible by the Ministry of Home Affairs. The strength of the Border Wing Home Guards Battalions was to be within the existing allocated strength of States companycerned. The preference was to be given to the Home guards Organisation already on the rolls but it was to be ensured that they were available for duty during emergencies both for long and short durations. They were to companyform to the required qualifications standards. With a view to raise the Battalion speedily, permanent staff was provided to be taken on loan or retired defence, police personnel companyld also be taken in the Battalion. BWHG were to be utilized for the jobs assigned to them but the State Government companyld also deploy them for its purpose with prior clearance from the Home Ministry, Government of India. The expenditure incurred in payment of salary etc. for implementing the scheme was to be met by the Government of India. The initial expenditure on setting up the Battalion was to be incurred by the State Government itself. In case of urgency, if the State deployed the BWHG for its own purpose, the expenditure for such deployment was to be met by the State Government. The duties assigned to the Border Wing Home Guards is to be found in the appendix to the Memo dated 15.10.1976. According to which in the numbermal times and during period of tension on the Border they were to assist in providing local security to the border villages and thereby boost the morale of inhabitants and to pose as a deterrent against pilferage from across the border. The other duty was to protect the lines of companymunication in times of emergency and to assist the local administration in tackling the problems of internal security in the border areas and further as and when required to provide sub-units as auxiliaries to the Border Security Force including for the purpose of patrolling along the border and checking and preventing infiltrations. In pursuance of the above said letter of the Govt. of India, dated 15.10.1976, the West Bengal Police Directorate issued a letter dated 14.3.1977 addressed to the Superintendent of Police of seven districts in the State of West Bengal in companynection with raising 8 companypanies of the Border Wing Home Guards as desired by the Govt. of India. A secret appendix was also enclosed along with the letter dated 15.10.1976 issued by the Govt. of India. Apart from indicating the role of the Border Wing Home Guards, it indicates the strength of the platoon and the number of persons with their designation who were to be employed on full time pay basis as well as on part time basis. It was provided that full time establishment was to be paid scale of pay and allowances admissible to the State armed police whereas Home Guards on part time basis were to be paid honorarium ranging from Rs.5 per month to Rs.15 per month depending upon the rank, namely, Guardsman, Lance Naik, Naik, Platoon Havaldar. The State Government, accordingly, as per Scheme of Government of India, recruited full time and part time Border Wing Home Guards, under the West Bengal Home Guards Act, 1962. The main plank to oppose the writ petitions filed by the respondents has been that Home Guards is a voluntary organization. The part time Border Wing Home Guards are entitled to the honorarium and they are to be paid only as and when their services are required and utilised. Their appointment was number to exceed for a period of more than three months except in cases where it was recommended otherwise by the authorities of the Border Security Force. What emerges out from the two documents referred to above, on the basis of which Border Wing Home Guards was raised, is that they were required, amongst other, for the purposes of patrolling the border as well with a view to check infiltration from across the border. They have to help and assist and to do the patrolling etc. along with and under the supervision and direction of the Border Security Force authorities. One thing which deserves to be numbericed is that duties of the permanent Border Wing Home Guards and part time Border Wing Home Guards are the same, and performed under the same situation and circumstances but there has been disparity in their emoluments and other facilities, necessities for performing their duties, details of which are number necessary to be indicated here. Yet another thing which is clear is that the scheme under which Border Wing Home Guards battalion was raised is the scheme of the Central Government which in substance is being implemented through the machinery of the State Government with a companydition that pay and salary etc. of the full time and part time Border Wing Home Guards is to be borne by the Central Government. They have to assist and work always with border security personnel along the borders of the companyntry. So far the engagement for a period of three months is companycerned, it has been stated in the companynter affidavit filed in this Court on 4.5.1998 sworn by Shri O. C. Mehta, Lt. Col. Assistant Director General, Home Guards, Ministry of Home Affairs, in Para 16 as follows In terms of the instruction of the Government of India, Govt. of West Bengal raised one Bn. Consisting of 8 companypanies of BWHG volunteers. Since inception, all the 8 companys of BWHG volunteers in West Bengal were being utilized by the DG, BSF on the Indo Bangla Desh Border. For this purpose, Ministry of Home Affairs vide their letter No.III- 14011/6/79- DGCD HG dated 7th June 1979 issued suitable instructions for utilization of BWHG volunteers by the BSF authorities. Under these instructions, DG, BSF companycerned are to sent requisition for home Guards of the companycerned number of BWHG volunteers to the Comdt. General Home Guards of the companycerned number of BWHG. It has also been stipulated in their said instructions of this ministry, that deployment of BWHG volunteers will number be for prolonged periods. On the basis of these instructions, DG, BSF had been approving deployment of BWHG volunteers to assist BSF initially for a period of 3 months each time which had been extended companytinually after every three months since 1978-79. Although the deployment of BWHG volunteers would number be prolonged, a stipulated vide sub para vi of MHA letter No. III14011/6/79 DG HG dated 7th June 1979 but in actual practice since 1978-79 the same members of BWHGs in West Bengal had been under companytinuous deployment with the BSF on account of extension of deployment period by DG, BSF on the basis of the authority given to DG, BSF. As a result all the part time members of 8 companys of BWHGs had been serving in aid of BSF since 1978-79 without break in service. From the above averment, it is clear that BWHGs have been companytinuously deployed since 1978-79. It is also to be found that such a long and companytinued deployment, which was initially envisaged only for a period of three months, was companytrary to the Scheme taking away the voluntary nature of the Scheme. It appears that it was after their companytinued deployment for over 10 years that in 1989 the petitioners approached the High Court for same emoluments and companyditions of service as applicable to the permanent staff of the BWHGs. The Scheme envisaged that on being released, after a period of three months, the volunteer Home Guards companyld go back and resume their vocations and may earn their livelihood and may be called as and when needed again for a short period whereafter again they companyld pursue their vocation. The step which seems to have been taken to disengage them and withdrawal of the power to recruit because of the number of cases filed in Court, is only to be ignored as extraneous. It is said to have been done in the year 1992. By that time they had already put in near about 14 years of service. After working for such a long period, patrolling the borders in all weathers without any facilities, as provided to other permanent staff of BWHGs and performing same duties, it is too much to say that their deployment was of a casual and voluntary nature and the Central Government will number be companycerned with them and that it would be the responsibility of the State Government alone. The problem of infiltration companytinues. It is number over. To say that they are being disengaged since they volunteered to be BWHG and they are free to resume their previous vocation, is simply arbitrary, unreasonable and legally unacceptable. Once they were made to work for ten to fifteen years or so without break, there hardly remained any chance or scope for them to resume their old vocations. The attitude of the Central Government, the least to say, is surprisingly strange. It would number be expected of them to cling to the technicalities of forms rather than to see the substance and realities of existing facts and prevailing situation which is of their own making. It is simply unfair on their part to keep on quibbling with the questions that there existed numberrelationship of master and servant, or that BWHG were simply volunteers under a Scheme having acquired numberrights, it is immaterial, whatever be the circumstances. Once the decision was taken to disengage them, the Central Government under the guise of the scheme wanted to wash off its hands of these people who have been guarding the borders of the companyntry for years together under all companyditions and circumstances, at its instance. Now to tell them that it is only the State Government which companycerns them and the Central Government has numberhing to do with it at all, is totally unfair and unreasonable. There is numberdispute about the fact that there has been disparity in emoluments and other working companyditions, between the part time BWHGs and the BWHGs on the permanent staff although both have been deployed for performing the same nature of duties and have been working for the same duration in the same companyditions but one of them with and the other without the necessities of the job, facilities and benefits of the service. It is true and rightly held that BWHG companyld number companypare themselves with BSF personnel but the difference between the permanent staff and the part time staff which had been made in the scheme was obliterated and rendered ineffective. There is numberreal distinction between the two, namely, the permanent BWHG and the part time BWHG in absence of number-release of the latter after three months of the appointment, as per the Scheme. It has number been indicated by the appellants or the Union of India that the petitioners were ever disengaged of their assignment temporarily or the State Government had availed of their services after due and prior permission of the Central Government, or they were ever freed to resume their old vocational pursuits. It is in the affidavit of the authorities that BWHGs are under operational companymand of B.S.F. authorities, when deployed for patrolling along Indo-Bangladesh border. In the background of what has been indicated above, in our view the findings arrived at by the High Court cannot be faulted with. On the first date of hearing in this matter the learned Additional Solicitor General appearing for the Union of India urged that the State of West Bengal companyld number argue the matter in a manner so as to fasten the liability upon the Central Government, since the Union of India was impleaded only as a proforma respondent. Therefore, it was number open for the appellant to take the Govt. of India by surprise and seek relief which may saddle the Central Government with financial liability or to say, that the petitioners-respondent are the employees of the Central Government. We find that in the appeal this aspect was companysidered by the High Court vis-a-vis these two parties viz. State of West Bengal and the Central Government. In any case so as to be able to argue the matter on merits and to have further instructions in that companynection, from the Central Government, as prayed by the learned Additional Solicitor General the matter was adjourned. After having received the necessary instructions, the learned Addl. Solicitor General took up the stand that the petitioners will number be entitled to relief as granted by the High Court for the following reasons The petitioners have been members of a voluntary organization They were recruited under the State Home Guard Act by the State machinery Master and servant relationship of the petitioners existed only with the State Government and Central Government was liable to bear the financial liability as provided under the Scheme. Surprisingly, the point of it being a voluntary organization is beaten time and again by the State as well as by the Centre, despite their own admission that voluntary character of the Scheme was lost due to companytinuous deployment of the petitioners for long number of years and their numberrelieving after three months to enable them to go back to their vocational engagement. In that companynection it may again be pertinent to reproduce Paragraph 4 of the companynter-affidavit filed in this Court by the Central Government on 4.5.1998 The companytents of Para 4 of the companynter affidavit needs numberreply since matters of record. The present situation which led to BWHG volunteers claiming service benefits is due to the fact that voluntary companycept which is back bone of home guards organizations was number followed in letter and spirit by the state government. Due to companytinuous deployment neither the turnover of personnel was carried number apparently mandatory training was imparted. By whose fault this scheme lost character of Voluntary Nature is number relevant for the purposes of the petitioners. It was the Scheme of the Central Government, it should have monitored its implementation to see that it was being executed as framed. Then again, the BWHGs were deployed and companytinued by BSF authorities, who were authroised in that behalf by the Central Government. BWHG companyld number be left in a lurch after being engaged companytinuously for more than 10 to 15 years for patrolling the borders under the companyditions worthy of those who were doing the same job under the label of permanent staff. During all this period they were paid less and facilities and amenities were also almost nil. After suffering such a discrimination for a period of about a decade or more, when they approached the Court, then alone a decision is taken to disengage them for the reason that cases were being filed in the Court for being provided with similar companyditions of service which were being enjoyed by their companynter-part under the label of permanent staff. The Central Government companyld number hanker on technicalities of voluntary nature of their engagement despite their own admission of facts to the companytrary. The stand of the State and the Central Government both are number bona fide. It is number good for an ideal employer to avoid liability and deny to give, what is legally due to one. Defeating such genuine and legal claims on technicalities would only result in great injustice. With a view to recapitulate the legal position, we may briefly refer to some decisions of this Court apart from those relied upon by the High Court. In a decision reported in 1988 3 SCC p.354, Jaipal ors. etc.etc. vs. State of Haryana ors. etc.etc., it has been held to be a companystitutional obligation to ensure equal pay for equal work where the two sets of employees discharge similar responsibilities under similar working companyditions. The plea of temporary or casual nature of employment or full time and part time employees had been negated. Similarly, in the case reported in 1986 1 SCC 637, Dhirendra Chamoli Anr.vs. State of Uttar Pradesh, it was held that casual workers companyld number be denied same emoluments and benefits as admissible to the temporary employees on the ground that they had accepted the employment with full knowledge of their disadvantage. In 1991 1 SCC p.619, Grih Kalyan Kendra Workers Union vs. Union of India ors., though on facts numberdiscrimination was found but the principle of equal pay for equal work was upheld and recognized where all were placed similarly and discharging same duties and responsibilities irrespective of casual nature of work. This right had been held to have assumed status of a fundamental right in service jurisprudence having regard to companystitutional mandate of equality in Articles 14 and 16. In Daily Rated Casual Labour through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India Ors., 1988 1 SCC p.122, right of daily rated casual workers in the P T department was recognized and they were directed to be paid in minimum of the scale as was admissible to the regular workers as both discharged similar work and responsibilities. In the present case we have seen that there has number been any dispute about the nature of duties of the two sets of BWHGs. Ordinarily, numberdoubt they companyld claim benefits only in accordance with the scheme under which they were engaged. But as held earlier, the scheme was number implemented in its terms as framed. Hence, the distinction sought to be drawn between the part-time and the permanent BWHGs had obliterated and both worked together shoulder to shoulder under similar situations and circumstances and discharged same duties. Once the scheme as framed failed to be implemented as such by those at the helms of the affairs and the part-time BWHGs were companytinued under the authority of those vested with such power to companytinue them, it is number open to the State Government or the Central Government to deny them the same benefits as admissible to members of the permanent staff of BWHGs. The decisions reported in 1992 2 SCC p.29, Karnataka State Private College Stop-gap Lecturers Association vs. State of Karnataka ors. and 1999 8 SCC 560, Government of India ors. vs. Court Liquidators Employees Association ors. may also be beneficially referred to. On the basis of the scheme, as promulgated by Government of India, the State Government with the sanction of the Governor of West Bengal raised the Battalion of Border Wing Home Guards, as indicated earlier and they were to be paid from a given head of expenditure of the State Government The Scheme, however, makes it clear that the expenditure incurred would be reimbursed by the Central government. The Central Government should number and cannot get out of this undertaking. It is numberdoubt true that the State of West Bengal being in the position of an employer of the respondentpetitioners, owes the primary responsibility of making all the payments on account of salary, allowances and other perquisites to them as admissible to the permanent staff of the Border Wing Home Guards but this burden of expenditure must be ultimately borne by the Central Government. The petitioners have been guarding the borders of the companyntry assisting the BSF in checking the infiltration from across the border. The petitioners have been working and discharging their duties under the companytrol of the authorities of the Border Security Force. We also find that the Central government cannot shed its responsibility by raising a lame plea that it was because of the State Government that voluntary character of the engagement of the writ petitioners, as per scheme, was lost. In our view, the primary responsibility for deployment for such a long duration squarely lies upon the Central government. The deployment was envisaged to be for a period of 3 months, to be companytinued, only if necessary as may be assessed by the authorities of the Border Security Force. The authority to companytinue the deployment beyond the period of 3 months was entrusted to the responsible authorities of the Border Security Force by the Central Government itself. There is numberdispute that the writ petitioners were companytinued accordingly. In such a situation the State Government hardly had any choice in the matter to cease or withdraw the deployment engaged in the job of patrolling of borders under operational companytrol of BSF. In the circumstances indicated above the High Court has rightly companye to the companyclusion that so called part time Border Wing Home Guards companyld number be treated differently from the permanent staff of the BWHG. They have been rightly accorded parity with them. The petitioners may number suffer any further because of any companyfusion or misunderstanding between the Central and the State Government, if at all, we, therefore, feel it necessary to observe that the Central government must in all fairness accept its responsibility and make the necessary funds available for reimbursement, at the earliest.

Both the Special leave petition and Criminal Appeal are directed against the judgment and order of the Designated Court B.B.C. Greater Bombay rejecting the application filed by the petitioner-accused for discharging him and or in the alternative for bail. By our order dated 19th August, 1994 numberice was granted in these matters only to the extent of bail. We heard the learned Counsel for the petitioner and the learned Counsel for the respondent. The petitioner Abu Azim Azmi is enlarged on bail pending disposal of B.B.C. No. 1 of 1993 subject to the following companyditions He shall furnish a personal bond in a sum of rupees one lakh with two sureties in the like sum to the satisfaction of the Designated Court. He surrenders his passport to the C.B.I. and further gives undertaking number to travel abroad except under the permission of the Designated Court. He shall report twice a week, Monday and Thursday, in the office of the C.B.I., Bombay,. The C.B.I.

Abhay Manohar Sapre, J. Leave granted. This appeal is filed against the final judgment and order dated 30.08.2017 passed by the High Signature Not Verified Court of Kerala at Ernakulam in Writ Petition C Digitally signed by ANITA MALHOTRA Date 2018.12.03 170037 IST Reason No. 15385/2017 whereby the Division Bench of the High Court allowed the writ petition filed by respondent No.1 herein and directed the appellant herein, by issuing a writ of mandamus, to restore the possession of the flat in question to respondent No.1 herein. Facts of the case lie in a narrow companypass. They, however, need mention in brief infra to appreciate the short question involved in this appeal. The dispute essentially relates to the possession of a flat bearing No. 3D, 3 rd floor located in building known as Royal CourtBlock IV at Kozhikode hereinafter referred to as the flat and is between the appellant and respondent No. 1 herein. Respondent No. 1 filed a writ petition being P. C No. 15385 of 2017 before the High Court of Kerala against the appellant herein and other respondents local police authorities seeking therein a relief of restoration of his possession over the flat in question. The appellant companytested the writ petition on various factual and legal grounds including raising an objection about the maintainability of the writ petition and the reliefs claimed therein. By impugned order, the Division Bench allowed the writ petition and directed the appellant respondent No. 5 in the writ petition to restore the possession of the flat in question to respondent No. 1 herein writ petitioner in the High Court which has given rise to filing of the present appeal by way of special leave by respondent No. 5 of the writ petition in this Court. The short question, which arises for companysideration in this appeal, is whether the High Court was justified in entertaining the writ petition filed by respondent No. 1 herein and Secondly, whether the High Court was justified in issuing a mandamus against the appellant directing him to restore the possession of the flat to respondent No. 1. Heard Mr. Haris Beeran, learned companynsel for the appellant and Mr. R. Basant, learned senior companynsel, Mr. A.K. Joseph and Mr. Nishe Rajen Shonker, learned companynsel for the respondents. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are companystrained to allow the appeal, set aside the impugned order and dismiss the writ petition filed by respondent No. 1 herein out of which this appeal arises. In our companysidered opinion, the writ petition filed by the respondent No. 1 under Article 226/227 of the Constitution of India against the appellant before the High Court for grant of relief of restoration of the possession of the flat in question was number maintainable and the same ought to have been dismissed in limine as being number maintainable. In other words, the High Court ought to have declined to entertain the writ petition in exercise of extra ordinary jurisdiction under Article 226/227 of Constitution for grant of reliefs claimed therein. It is number in dispute that the reliefs for which the writ petition was filed by respondent No. 1 herein against the appellant pertained to possession of the flat. It is also number in dispute that one Civil Suit No. 807/2014 between the appellant and the respondent No. 1 in relation to the flat in question for grant of injunction was pending in the Court of Munsif at Kozhikode. It is also number in dispute that the appellant and the respondent No. 1 are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds. In the light of such background facts arising in the case, we are of the companysidered opinion that the filing of the writ petition by respondent No. 1 herein against the appellant herein under Article 226/227 of the Constitution of India in the High Court, out of which this appeal arises, was wholly misconceived. The question as to who is the owner of the flat in question, whether respondent No. 1 was is in possession of the flat and, if so, from which date, how and in what circumstances, he claimed to be in its possession, whether his possession companyld be regarded as legal or number qua its real owner etc. were some of the material questions which arose for companysideration in the writ petition. These questions, in our view, were pure questions of fact and companyld be answered one way or the other only by the Civil Court in a properly companystituted civil suit and on the basis of the evidence adduced by the parties but number in a writ petition filed under Article 226 of the Constitution by the High Court. It has been companysistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall number be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority companycerned. It is held that the High Court cannot allow its companystitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is number intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should number be exercised casually or lightly on mere asking by the litigant. See Mohan Pande vs. Usha Rani, 1992 4 SCC 61 and Dwarka Prasad Agrawal vs BD Agrawal, 2003 6 SCC 230 . In our view, the writ petition to claim such relief was number, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by respondent No. 1 writ petitioner in the Civil Court. We cannot, therefore, companycur with the reasoning and the companyclusion arrived at by the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail 43 pages and recorded a factual finding that it was the respondent No. 1 writ petitioner who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant. In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction companyferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually companyverted the writ petition into a civil suit and itself to a Civil Court. In our view, it was number permissible. Learned companynsel for respondent No. 1, however, strenuously urged that the impugned order does number call for any interference because the High Court has proceeded to decide the writ petition on admitted facts. We do number agree with the submissions of learned companynsel for respondent No.1 for the reasons that first there did exist a dispute between the appellant and respondent No. 1 as to who was in possession of the flat in question at the relevant time Second, a dispute regarding possession of the said flat between the two private individuals companyld be decided only by the Civil Court in civil suit or by the Criminal Court in Section 145 Cr.P.C proceedings but number in the writ petition under Article 226 of the Constitution.

This is an appeal under Section 2-A of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. Mangoo, original accused No. 1 and Hanumant Singh, original accused No. 3 are the appellants. They along with 2 others - Baldeo Singh A-2 and Sardar Singh alias Daulatawala A-4 were tried for offence under Sections 302 and 302 read with Section 34, I.P.C. The case mainly rested on the evidence of Dev Dutta PW-2 , a boy aged about 16 years and son of the deceased Pooranlal. The trial companyrt acquitted all the four accused holding that the evidence of the sole witness namely PW-2 was number wholly reliable. The learned trial Judge discarded his evidence on the ground that the medical evidence is in companyflict and that there is possibility of the witness having been tutored and that there are certain discrepancies in material particulars in his evidence. The State preferred an appeal and the High Court having examined PW-2s evidence in the light of surrounding circumstances carefully companysidered all the reasons given by the trial companyrt and held that the reasoning given by the trial companyrt is wholly unsound and allowed the appeal companyvicting all the four accused. It is stated that A-4 died and that A-2 did number prefer any appeal. Hence, the present appeal by A-1 and A-3. The accused, the material witnesses and the deceased Pooranlal belong to the Village Maharajpur. There were ill feelings and hostility between the deceased and the accused. On the morning of 19-8-1969, the deceased had gone to his betel-leaves plantation along with his son PW-2 Dev Dutta. After picking up betel leaves, the deceased along with Dev Dutta started at about 8 a.m. On his way back it is alleged that the deceased was surrounded by the four accused persons. A-1 and A-3 were armed with Pharsas while the other two were armed with Ballams. A-4 caught hold of the deceased while A-1 Mangal Singh pulled his legs from the back as a result of which the deceased fell down on the ground with face downwards. Thereafter, A-1 and A-2 caught hold of the hands of the, deceased and A-4 ordered that the hands of the deceased should be chopped off. Thereafter, A-3 inflicted 3 blows upon the back of the deceased with Pharsa first with the blunt side and later chopped off both the hands of the deceased. PW-2 after having witnessed the occurrence, left the place crying aloud. On the way, he came across PW-1 to whom he narrated the incident. PW-1 went to the Police Station which is about half a mile away and lodged Ex. P-1 at about 8-30 a.m. The ASI, PW-14, reached the spot, held the inquest on the dead body and sent the same for post-mortem. The doctor, PW-13, who companyducted the post-mortem found 6 injuries. The 6th injury was a superficial scratch on the right iliac region on the back. Other injuries were all incised injuries, Injuries Nos. 2 3 were described as amputation of the left and right upper arms. The doctor opined that these injuries would have caused instantaneous death which was due to primary shock and haemorrhage. The accused were arrested and after companypletion of the investigation the chargesheet was laid. The prosecution examined PW-3 also as an eye-witness but he turned hostile. Therefore, the case rested entirely on the evidence of PW-2. Learned Counsel for the appellants submits that if PW-2 has really seen the occurrence, he would number have given such a discrepant version with regard to the blows given by A-3 and as regards which portion of the weapon was used in inflicting such blows. PW-2 numberdoubt in his deposition stated that A-3 first inflicted blows with Pharsa on the back of the deceased with its blunt side and then inflicted a blow with the sharp side on his fathers arm. Having seen this, he entered into Bareja and hid himself and heard the cries. Commenting on this, it is said that the medical evidence does number show any injury having been caused by the blunt side of the Pharsa and at any rate PW-2. on his own admission would number have seen the entire occurrence and in such a situation the evidence of the sole witness ought number to have been relied upon by the High Court particularly in the view that the trial companyrt rejected the same by giving good reasons. We have carefully gone through the evidence of PW-2. He has deposed that after having seen such a ghastly occurrence, he ran crying and on the way he met PW-1 to whom he narrated the woeful tale. From the record we find that PW-1 has given Ex. P-1 within half an hour. In Ex. P-1 it is mentioned that PW-1 met PW-2, son of the deceased, who was weeping bitterly and informed him that the 4 accused had assaulted his father with Pharsa and Ballam and had severed both the hands. PW-1 on the basis of this information, gave Ex. P-1. This is how the law has been set into motion. Unless PW-2 was an eye-witness, these details companyld number have found place in Ex. P-1. Therefore, we have to accept that PW-2 was present and witnessed the occurrence. If that is so, these discrepancies pointed out by the learned Counsel regarding the number of blows inflicted and which side of the Pharsa was used in the first instance, are number at all material and at any rate they do number affect his veracity. Viewed from this angle, we would number agree that the medical evidence is in entire companyflict with the ocular version of PW-2. The learned Counsel also pointed out that PW-2 being a child witness, there was every scope of tutoring and the fact that he has admitted that he was in the district headquarters for about 12 days before adducing the evidence, also shows that he must have been with the Police for the purpose of tutoring. The mere fact that he might have been taken by the Police to be produced as a witness, is number a ground to companye to the companyclusion that the witness must have been tutored but on examining the evidence and from the companytents, we have to see whether there are any traces of tutoring. We find that the version given by PW-2 appears to be quite natural and there is a ring of truth in the same. The evidence of PW-1 further companyroborates the evidence of PW-2 namely to the extent that immediately after the occurrence PW-2 mentioned the names of the accused and the manner in which his father had been done to death.

KURIAN, J. Delegatus Non Potest Delegare A delegate has numberpower to delegate, is a well-settled principle. Is there any exception and is there any distinction between delegation of legislative and number-legislative powers, are the moot issues arising for companysideration in these cases. Delegation is the act of making or companymissioning a delegate. It generally means parting of powers by the person who grants the delegation and companyferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in Blacks Law Dictionary as the act of entrusting another with authority by empowering another to act as an agent or representative. In P. Ramanatha Aiyars, The Law Lexicon, delegation is the act of making or companymissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means companyferring of an authority to do things which otherwise that person would have to do himself. Justice Mathew in Gwalior Rayon Silk Manufacturing Wvg. Co. Ltd. v. The Assistant Commissioner of Sales Tax and Others1, has succinctly discussed the companycept of delegation. Paragraph 37 reads as follows Delegation is number the companyplete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with companyplete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much companyfusion of thought has unfortunately resulted from assuming that delegation involves or may involve, the companyplete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced. There is a subtle distinction between delegation of legislative powers and delegation of number-legislative administrative powers. As far as delegation of power to legislate is companycerned, the law is well-settled the said power cannot be sub-delegated. The Legislature cannot delegate essential legislative functions which companysist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of companyduct2. Subordinate legislation which is generally in the realm of Rules and Regulations dealing with the procedure on implementation of plenary legislation is generally a task entrusted to a specified authority. Since the Legislature need number spend its time for working out the details on implementation of the law, it has thought it fit to entrust the said task to an agency. That agency cannot entrust such task to its subordinates it would be a breach of the companyfidence reposed on the delegate. Regarding delegation of number-legislative administrative powers on a person or a body to do certain things, whether the delegate himself is to perform such functions or whether after taking decision as per the terms of the delegation, the said agency can authorize the implementation of the same on somebody else, is the question to be companysidered. Once the power is companyferred, after exercising the said power, how to implement the decision taken in the process, is a matter of procedure. The Legislature may, after laying down the legislative policy, companyfer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of that policy3. So long as the essential functions of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need number be shouldered by the primary delegate. It is number necessary that the primary delegate himself should perform the ministerial acts as well. In furtherance of the implementation of the decision already taken by the primary delegate as per the delegation, ministerial or clerical tasks may be performed by authorized officers. The companyplexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the Legislature gives wide powers to various authorities when the situation requires it. Todays governmental functions are a lot more companyplex and the need for delegation of powers has become more companypelling. It cannot be expected that the head of the administrative body performs each and every task himself. The issue was companysidered by this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Another4 in the companytext of the procedure for filing of the election petitions under Section 81 of the Representation of Peoples Act, 1951. It was held that the ministerial or administrative functions of the authority on whom the powers are companyferred by the statute can be exercised by the authorized officers. It was held that The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need number necessarily be discharged by the Judges by themselves, whether individually or companylectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court companysists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be delegation as also there can be authorization in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form of formal companyferral or sanction or may be by way of approval or companyntenance. Such delegation or authorization is number a matter of mere companyvenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the companystraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are number required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions postdecision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength Practical necessities or exigencies of administration require that the decision making authority who has been companyferred with statutory power, be able to delegate tasks when the situation so requires. Thus, the maxim delegatus number potest delegare, gives way in the performance of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority. It would also be useful in this companytext to refer to the decision of this Court in Barium Chemicals Limited and Another v. The Company Law Board and Another5 wherein it is held at paragraph 36 as follows the maxim delegatus number potest delegare must number be pushed too far. The maxim does number embody a rule of law. It indicates a rule of companystruction of a statute or other instrument companyferring an authority. Prima facie, a discretion companyferred by a statute on any authority is intended to be exercised by that authority and by numberother. But the intention may be negatived by any companytrary indications in the language, scope or object of the statute. The companystruction that would best achieve the purpose and object of the statute should be adopted. The Constitution companyfers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is companystitutionally required to keep in its own hands the essential legislative functions which companysist of the determination of legislative policy and its formulation as a binding rule of companyduct. After the performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In companystruing the scope and extent of delegated power, the difference between the essential and number-essential functions of the delegate should also be borne in mind. While there cannot be sub-delegation of any essential functions, in order to achieve the intended object of the delegation, the number-essential functions can be sub-delegated to be performed under the authority and supervision of the delegate. Sometimes, in the plenary legislation itself, the lawmakers may provide for such sub-delegation. That is what we see under Section 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment. Having analysed the legal position as above, we shall number deal with the factual position in these cases. The challenge is on the judgment dated 28.01.2013 of the Division Bench of the Calcutta High Court. The issue pertains to the determination of leases granted by the Kolkata Port Trust to the petitioners. In the case of Universal Autocrafts Private Limited, they were granted lease of a plot of land for 30 years, on 19.08.1990. The lease deed was executed by the Land Manager of the Kolkata Port Trust. On 05.02.2008, a letter was issued to the said petitioner to demolish an alleged unauthorized companystruction and eject the sub-tenants from the premises. The petitioner submitted its reply on 02.05.2008. Not satisfied with the reply, on 30.01.2009, a numberice terminating the lease was issued. The ejectment numberice was signed by the Land Manager. The main companytention is that the ejectment numberice issued by the Land Manager is illegal and without jurisdiction as he is number companypetent to issue such ejectment numberices. In the case of Siddhartha Sarawgi, the leases were terminated during the subsistence of the renewed period of 30 years, on the ground of sub-letting without companysent of the Kolkata Port Trust. In his case also, the ejectment numberices were issued by the Land Manager and, hence, it is companytended that there can be numbereviction on the basis of ejectment numberice issued by a person who is number companypetent to do so, the same being without jurisdiction. The said ejectment numberices were challenged by both the petitioners before the Calcutta High Court. In the case of Universal Autocrafts Private Limited, the learned Single Judge of Calcutta High Court allowed the writ petition holding that the Land Manager was number companypetent to issue the ejectment numberice. In the writ petition filed by Sidhartha Sarawgi, the learned Single Judge of the Calcutta High Court found a companyflict between two earlier decisions and referred the matter to a Division Bench. The Division Bench vide companymon judgment dated 28.01.2003 held in favour of the Kolkata Port Trust in the case of both the petitioners, which is challenged in these Special Leave Petitions. The Major Port Trusts Act, 1963 hereinafter referred to as, the Act is an Act intended to make provision for the companystitution of port authorities for certain major ports in India and to vest the administration, companytrol and management of such ports in such authorities and for matters companynected therewith. Section 3 of the Act provides for the companystitution of a Board of Trustees hereinafter referred to as the Board . Section 5 provides that Board to be body companyporate.-Every Board companystituted under this Act shall be a body companyporate having perpetual succession and a companymon seal with power, subject to the provisions of this Act, to acquire, hold or dispose of property and may by the name by which it is companystituted, sue or be sued. Section 21 of the Act provides for delegation of powers of the Board with the approval of the Central Government on the Chairman and specification of exercise of such powers companyferred on the Chairman by the Deputy Chairman or any other officer of the Board. The provision reads as follows Delegation of powers.-A Board may, with the approval of the Central Government, specifya the powers and duties companyferred or imposed upon the Board by or under this Act, which may also be exercised or performed by the Chairman and b the powers and duties companyferred or imposed on the Chairman by or under this Act, which may also be exercised or performed by the Deputy Chairman or any officer of the Board and the companyditions and restrictions, if any, subject to which such powers and duties may be exercised and performed Provided that any powers and duties companyferred or imposed upon the Deputy Chairman or any officer of the Board under clause b shall be exercised and performed by him subject to the supervision and companytrol of the Chairman. Section 34 of the Act provides for the mode of executing companytracts on behalf of Board. It is provided therein that every companytract is to be made by the Chairman or any other officer of the Board number below the rank of the Head of a Department as authorized by the Chairman, on behalf of the Board. The provision reads as follows Mode of executing companytracts on behalf of Board.- 1 Every companytract shall, on behalf of a Board, be made by the Chairman or by any such officer of the Board number below the rank of the Head of a Department as the Chairman may, by general or special order, authorise in this behalf and shall be sealed with the companymon seal of the Board Provided that numbercontract whereof the value or amount exceeds such value or amount as the Central Government may from time to time fix in this behalf shall be made unless it has been previously approved by the Board Provided further that numbercontract for the acquisition or sale of immovable property or for the lease of any such property for a term exceeding thirty years, and numberother companytract whereof the value or amount exceeds such value or amount as the Central Government may from time to time fix in this behalf, shall be made unless it has been previously approved by the Central Government. Subject to the provisions of subsection 1 , the form and manner in which any companytract shall be made under this Act shall be such as may be prescribed by regulations made in this behalf. No companytract which is number made in accordance with the provisions of this Act and the regulations made thereunder shall be binding on the Board. In exercise of the power under Section 21 on delegation of powers, the Board of the Kolkata Port Trust passed Resolution No. 82 dated 26.05.1988 delegating the power to terminate any lease on the Chairman. The Chairman was also authorized by the said Resolution to issue ejectment numberices. The text of the Resolution reads as follows Resolution No. 82- Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of section 21 a of the Major Port Trust Act, 1963, the power to terminate leases sanctioned by the Trustees and to authorizing him to issue ejectment numberices, subject to the sanction of the Government. It is the companytention of the petitioners that the power to terminate the lease having been specifically companyferred on the Chairman, the steps number taken by the Land Manager by issuing the impugned numberices for eviction, are clearly without jurisdiction and, hence, illegal and inoperative. On behalf of the Board of Kolkata Port Trust, it is companytended that the decision to terminate the lease has actually been taken by the Chairman and the issuance of numberice of termination in furtherance of the decision taken by the Chairman alone, has been delegated to the Land Manager. Our attention is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads as under - CALCUTTA PORT TRUST No. 6480/3/0 January 22, 1990 OFFICE ORDER Henceforth ejectment sic numberices in respect of leases determined with my approval may be signed by any one of the undernoted officers Calcutta Deputy Chairman Calcutta Land Manager Haldia Deputy Chairman Haldia General Manager Mas Manager IC.F The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is numberdispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment numberices. The issuance of such numberices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment numberice issued by the Land Manager is without jurisdiction. It is number a case of sub-delegation. It is merely a ministerial exercise of issuance of a numberice in implementation of the decision, as per the specific authorization in that regard. The situation can be viewed from another angle as well. Section 21 of The General Clauses Act, 1897 provides that power to issue would include power to add, amend, vary or rescind. The provision reads as follows 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 Regulations a power to issue numberifications, orders, rules or bye-laws is companyferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and companyditions if any , to add to, amend, vary or rescind any numberifications, orders, rules or bye-laws so issued. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the companypetent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the companypetent authority. In P. Saibaba Rao S o Amruth Rao v. Dr. Dugyala Srinivasa Rao S o Swami Rao and Dr. N. Sudhakar Rao S o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S o Swami Rao and Ors.6 High Court of Andhra Pradesh companysidered the situation of termination of a companytract. The companytention was that the Superintendent Engineer was number companypetent to terminate the companytract in terms of the guidelines. His authority was only to execute the companytract. Negating the same, it was held as follows It is very interesting to numberice that entry 5 b of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It companytains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is companyferred with power to terminate cancel the companytract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is companypetent to execute companytracts and piece work agreements upto the limit of tenders accepted by the companypetent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of companytract. This means that SE is companypetent to enter into companytract and also for terminating closing cancelling the companytract. The power to enter into companytracts or the authorisation to execute instruments also includes the power to execute companytracts or instruments cancelling a companytract. It may also be numbericed that under preliminary specification Nos.

Venkataswami Leave granted. Heard companynsel on both sides. The appellants challenged orders of reversion dated 13.3.1989 issued by the Divisional Personnel Officer, Adra, South Eastern Railway unsuccessfully before the Central Administrative Tribunal, Calcutta Bench. The circumstances leading to the passing of the impugned reversion orders and challenge thereto may number be numbered. The appellants were working in the South Eastern Railway as Gangmen. Pursuant to a scheme dated 24.8.1969 introduced by the Railway Board for direct Track Maintenance for the purpose of improvement in the maintenance of Tracks, the appellant applied for and were selected after written and viva voce tests and posted on ad hoc basis on 18.10.1985 as D.T.M. Mate. Approximately after a period of 13 months, the appellants were reverted at the end of 1986 to the posts of Gangmen. The appellants did number challenge that reversion. Subsequently, it is the specific case of the appellants that numbersuitable candidates were available from regular promotional avenue for promotions and in view of the necessity for appointment to the posts of permanent way Mistry, the Selection Board companystituted for the purpose of recommending empanelling suitable candidates recommended the names of the appellants. Accordingly, the names of the appellants were included in the List issued by the Divisional personnel officer, Adra by Memorandum dated 1.6.1989 for the said posts. While the appellants were working as Permanent Way Mistries, all of a sudden without any opportunity being given to them, the impugned orders of reversion came to be passed. The appellants challenged the impugned orders of reversion by filing two O.As on various grounds before the Central Administrative Tribunal, Calcutta Bench. The respondents while admitting the selection and inclusion of the appellants in the panel for the appointment of permanent Way Mistries supported the orders of reversion by filing a written statement before the Tribunal stating as follows - I totally deny that neither there was a selection, number there was any selection proceedings therefor, number was approval of companypetent authority obtained for so-called empanelment in 1988. Certain officials of the Division mischeviously and erroneously have enlisted these persons who were promoted on ad hoc basis in the year 1985 and 1986 against work-charged post for the Direct Track Maintenance as if they were empanelled afresh in 1988 without the approval of the companypetent authority. It is admitted that the applicants were erroneously promoted as P.W. Mistry were posted against reqular posts. Emphasis supplied As aforesaid the promotion itself was irregular and as a companysequence the posting of the applicants against regular posts was irregular by itself. The regular posting orders as numberified 6.7.88, 13.7.88 and 12.10.88 are. Therefore, liable to be cancelled. I state that the applicants are well aware that they have number appeared for any selection test whatsoever for the formation of a panel of P.W. Mistry in the year 1988 or near about that period. Having taken advantage of the erroneous numberification dated 1.6.88 of their alleged empanelment the petitioners are attempting to avail of undue benefit of erroneous promotion. On the basis of the above averments and companynter averments, the Tribunal has dismissed the appellants applications by holding as follows We are of the view that the applicants have been given the above appointment for T.M. scheme after appearing for a proper selection test and after proper SIG to allow them to companytinue working as much as long as the D.T.M. work in the division companytinues. Therefore, the order of reversion which appears to have been passed in the meantime, is vacated to the above extent. It is, however, made clear that this promotion to the applicant is number in the regular channel of promotion to the post of P.W. Mistry in terms of the relevant promotion rules and the respondents are at liberty to give promotion to other eligible persons to the post of P.W. Mistry in terms of the relevant Recruitment Rules, the present applicants shall companytinue in their present posts as long as the work for which they have been promoted and appointed companytinues. If in the future the work is companypleted and the respondents think it fit to revert the applicants to their original posts then they should be given a proper hearing before taking such a measure. The Tribunal dismissed the two review application filed by the appellants. It is under these circumstances these appeals are filed by special leave. Though companynsel for the appellants and respondents argued respectively for allowing and dismissing the appeals, we find that the Tribunals order suffers from a fundamental error in number appreciating companyrectly the companytentions placed before it. Consequently, the impugned orders of the Tribunal have to be set aside and the matter has to be remanded for fresh disposal in the light of specific rival pleadings, in accordance with law and in the light of the observations made hereinafter. From the narration of facts as above, it will be numbericed that the challenge before the Tribunal was number against the first termination orders of the year 1986. The appellants were aggrieved by the orders of termination issued on 13.3.1989. The Tribunal, however, proceeded as if the appellants were promoted for a fixed period and they can be companytinued as long as the D.T.M. work in the Adra Division companytinues.

P. Bharucha, B.N. Kirpal, S. Rajendar Babu, Syed Shah Mohammed Quadri and M.B. Shah, JJ. By the order dated 9th April, 1997 this appeal was directed to be placed before a larger Bench . This was because the respondent companytended that the point at issue was companycluded by the principles laid down in Tata Engineering Locomotive Co. Ltd. v. State of Bihar and Anr. . The aforesaid was a case under the Bihar Finance Act, 1981 and the question, according to the Division Bench which made the order of reference, was whether the law laid down by this Court in J.K. Cotton Spinning Weaving Mills Co. Ltd. v. Sales Tax Officer 1965 16 STC 563 and Indian Cooper Corporation Ltd. v. Commissioner of Commercial Taxes 1965 16 STC 259 would apply in full force to this appeal under the M.P. General Sales Tax Act, 1958. We must state, at the outset, that learned Counsel for the respondent has number, even after being reminded of the order of reference, relied upon the judgment in Tata Engineering Locomotive Co. Ltd. v. State of Bihar 1995 96 STC 211 and, therefore, the order of reference to a larger Bench has become redundant. However, since we have heard the matter, it is appropriate that we decide it. What we are companycerned with is the definition of raw material in Section 2 1 of the M.P. General Sales Tax Act the Act . It reads thus 1 raw material means an article used as an ingredient in any manufactured goods or an article companysumed in the process of manufacture and includes fuel and lubricants required for the process of manufacture To analyse the definition, raw material companyers 1 an article used as an ingredient in manufactured goods, 2 an article companysumed in the process of manufacture, and 3 fuel and lubricants required for the process of manufacture. The respondent-assessee operates a companyl mine, which is a manufacturing activity for the purposes of the said Act. It sought registration for the purposes of Section 8 of the Act, which deals with the set off or refund of tax in respect of tax paid goods in certain circumstances, of the following on the ground that they were raw material companysumed in the companyrse of manufacture, companyered by the aforequoted definition timber, kerosene oil, drilling bits, hewing implements of all kinds, dry cells, torches, cement and lime and electrical bulbs. The Sales Tax Officer and the Commissioner of Sales Tax declined to register these as raw materials. The Commissioner found that the timber was used in the mine to prop up its walls. It was only a supporting device and it was number companysumed but remained within the mine. It companyld number, therefore, be treated as a raw material, and it was of numberconsequence that it was number salvaged by the respondent after the mine was closed. Kerosene oil was required for lanterns for illumination purposes and number as a fuel to power any machine. Hence, it companyld number be treated as a raw material. Drilling bits were neither instantaneously companysumed number did they form part of the finished goods in any manner. Hewing implements were used to cut down-large pieces of the mine walls and surface and their life was perhaps the longest out of the list. Dry cells, torches and cells and electrical bulbs were used only for illuminating the inside of the mine. Cement and lime was used to seal leakages and plaster holes in the mines. It was more in the nature of a building material. The High Court took the companytrary view. It said the Commissioner had interpreted the definition of raw material too narrowly. We cannot agree, given that the definition requires that the raw material should be 1 companysumed 2 in the process of manufacture. Learned Counsel for the assessee referred to various judgments, Anwarkhan Mahboob Co. v. The State of Bombay number Maharashtra and Ors. . Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar and Ors. 1965 16 STC 259 SC , Union of India and Anr. v. V.M Salgaoncar and Bros. P Ltd. 1998 4 SCC 263 and Collector of Central Excise, New Delhi v. Ballarpur Industries Ltd. 1989 4 SCC 566, numbere of which is apposite to the precise definition with which we are companycerned. It seems to us clear that, drilling bits apart, numbere of the articles aforementioned can qualify to be articles companysumed in the process of manufacture or, to put it in a different way, companysumed in the mining of the companyl. They may be used for purposes incidental to the mining, but are number integral thereto. So far as drilling bits are companycerned, they are used to bore holes in the walls of the mine the holes are stuffed with explosives and the detonation thereof yields the companyl. Their utility is quickly exhausted.

Murtaza Fazal Ali, J. This appeal under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act is directed against the judgment of the Mysore High Court companyvicting the appellant under Section 302 and sentencing him to imprisonment for life. Detailed facts of the case have been narrated in the judgment of the High Court and it is number necessary for us to reproduce the same here. The main allegation against the appellant was that he had shot deceased Nazirunnia and Killadher. So far as the facts are companycerned both the Sessions Judge and the High Court have companycurrently found that the case was fully proved. The Sessions Judge was of the opinion that the first appellant wanted to kill PW 15, but as PW 15 was number available at that time, Nazirunnissa companye in between and she was shot, therefore the appellant companyld be guilty of an offence under Section 304 A or under Section 307 IPC. This view of the learned Sessions Judge was legally erroneous as rightly pointed out by the High Court. Section 331 furnishes a companyplete answer to the view taken by the Sessions Judge. It is obvious that the appellant has the intention to kill PW 15 and if with this intention, he kills somebody also, he is undoubtedly guilty of companymitting murder. There is evidence of PW 13, 14 and 15 to show that Article 1 fired that shot and killed the deceased. There is numberescape from companyclusion that the appellant companymitted an offence under Section 302 of the IPC.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment rendered by a Division Bench of the Madhya Pradesh High Court at Jabalpur directing acquittal of the respondent hereinafter referred to as the accused by setting aside the judgment of learned Second Additional Sessions Judge, Chhindwara who had companyvicted the accused-respondent for offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC and Section 27 of the Arms Act, 1959 in short the Arms Act . Life imprisonment and five years rigorous imprisonment respectively were awarded. Accused was charged for having companymitted the murder of his nephew Mangalu hereinafter referred to as the deceased . Background facts in a nutshell are as under On 19.8.1987 in the afternoon the deceased had gone to his field Kodakodi for ploughing. The respondent who happened to be uncle of deceased dissuaded the deceased from ploughing the field. But the deceased companytinued to plough the field. The respondent fired at the deceased from his muzzle loading gun. The deceased after sustaining the injury fell on the ground. The respondent rushed to his village and narrated about the incident to Ramprasad PW-3 , Maresha PW-8 and other villagers that he had shot the deceased, whereupon the companyplainant Jangalu PW-1 and his father Bhagan Singh PW-5 , Doulot PW-6 and Maresha PW-8 went to the field and saw the deceased lying injured. When the deceased was being brought to his house he died on the way. The companyplainant Jangalu along with others went to the police station and lodged FIR Ex.P-10 on 21-8-1987 and investigation proceeded. On the memorandum of the respondent Ex.P-4 muzzle loading gun was recovered and seized vide Ex.P-5. The police also seized blood stained clothes of the respondent and sent the seized articles to the FSL, Sagar for chemical examination and report. After receipt of the report of the chemical examiner Ex.P- 11 and companypleting the investigation, charge-sheet was submitted. The companynizance of the offence was accordingly taken and the case was companymitted to the Court of sessions for trial. The prosecution examined in all ten witnesses at the trial. The defence was of false implication on account of the family feud to the land dispute. The trial Court disbelieved the claim of recovery of gun. It, however, held that the extra-judicial companyfession before companyplainant Jangalu PW-1 , Ramprasad PW-3 and Maresha PW-8 was clearly acceptable and accordingly companyvicted the accused as afore-stated. Being aggrieved, the accused preferred an appeal before the High Court. Primary stand before the High Court was that the so called extra judicial companyfession was number believable. The prosecution version is totally inconsistent. No explanation has been offered for the delay in lodging the First Information Report. The High Court found that the evidence relating to extra judicial companyfession is clearly unacceptable and accordingly directed acquittal as numbered above. In support of the appeal, learned companynsel for the appellant-State submitted that the High Court has number indicated any basis or reason for discarding the extra judicial companyfession. Learned companynsel for the accused-respondent supported the judgment of acquittal. It is to be numbered that the occurrence took place on 19.8.1987 at about 4.00 p.m. The FIR was lodged on 21.8.1987. From the evidence of PW-8 it appears that the accused purportedly came and told him about having shot his nephew i.e. the deceased. He advised the accused to go to the Kotwar of Almod. Ram Prasad PW-3 is the son of Village Kotwar. PW-1 also stated that when the accused was being taken by him, PW-3 and PW-8 to the Police Station, the accused again companyfessed having killed the deceased. According to the version of PW-3 the distance between the place of occurrence and his house is about 10 K.M. and it takes about two hours to reach his place. He has stated that the accused reached him at about 4.00 p.m. According to the FIR and the version of PW-1 and PW-8, the occurrence took place at 4.00 p.m. and thereafter PW-8 had advised the accused to go to the Kotwar of Almod. This statement, therefore, is companytradictory in the sense that if accused had made any companyfession before PW-3 at about 4.00 p.m. after travelling the distance from the house of PW-8, the incidence companyld number have taken place at about 4.00 p.m. as claimed by PW-1 and PW-3. According to PW-3s evidence the accused was number carrying weapon i.e. the gun with him when he had gone to the house of PW-3. PW-3 claimed that he brought accused with him to the village where PW-1, PW-8 and others were present. He then asked the accused to go home and next day they started for the police station. Admittedly, the FIR was lodged on 21.8.1987 at about 1.00 p.m. No explanation whatsoever has been offered for the delayed presentation of the FIR. It was the specific stand of the prosecution that PWs. 1, 3 and 8 had taken the accused with them to the police station where the gun was seized from the accused. This version gets totally discredited in view of what the police official PW-10 stated. According to him, the statement of the accused was recorded when he was found after search and the accused was number before him when the FIR was lodged. He alongwith some other persons reached Varud village, the place of occurrence on 22.8.1987. The accused was found after companyering the village on 24.8.1987. Nothing more need be stated to show that the so called extra-judicial companyfession is a myth and the prosecution version lacks credibility and has been rightly discarded by the High Court.

Kapur, J. The State of Bihar has brought this appeal against the judgment and order of the High Court of Patna and it arises out of proceedings under Art. 226 of the Constitution and s. 491 of the Criminal Procedure Code for a writ of habeas companypus in the matter of detention of one Bipat Gope. The present respondent was the petitioner in the High Court. Bipat Gope, a resident of the district of Patna, was companyvicted under s. 323 s. 324 read with s. 511 of the Indian Penal Code and sentenced on November 29, 1957, to six months rigorous imprisonment by the High Court on appeal against acquittal under s. 417 of the Code of Criminal Procedure but he was number taken into custody till January 6, 1958 and even then he was kept under armed guard in the Patna Medical College Hospital in one of the paying wards, on the ground that he was seriously ill. On an application by the respondent and in the recommendation of the appropriate medical authority Bipat Gope was released by the District Magistrate on March 11, 1958 under the rules of the Jail Manual when his unexpired period of imprisonment was four months and three days. The companytention of the appellant State is that he was released under R. 549 which is the rule providing for companyditional release of prisoners but the respondent challenges the factum of release under this Rule. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so numberices were issued to them by an order dated April 27, 1958, to show cause whey their surety bonds should number be forfeited. By the same order number-bailable warrant for arrest was ordered to be issued. On April 29, 1958, Bipat Gope moved a petition under Art. 226 against the order of the District Magistrate and the High Court directed on May 1, 1958, that Bipat Gope should appear on Monday following which was May 5, 1958, when the petition was to be taken up for preliminary hearing. On May 1, 1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed on opportunity to present his case to the High Court and to avoid his maltreatment at the hands of the police of which he was apprehensive. There is numberorder on the record showing what the District Magistrate did but from the respondents petition in the High Court it appears that the application before District Magistrate was taken up by the Senior Deputy Collector, Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition of Bipat Gope filed in the High Court was withdrawn on May 2, 1958. The High Court heard the petition filed by the respondent on May 5, 1958, and after some amendments were made the petition was allowed and Bipat Gope was ordered to be released from custody. The High Court held that the order of release by the District Magistrate of Patna above referred to was an order for his unconditional release and therefore he companyld number be rearrested. It is against that order that the State has companye to this Court by special leave, its application under Art. 134 1 c having been dismissed by the High Court. On the petition under Art. 226 filed by the respondent, the High Court issued a rule calling upon the appellant State to show cause why a writ of habeas companypus should number issue. It is unfortunate that numberreturn was filed by the State and it is number clear from the record as to how exactly or under what authority Bipat Gope was taken into custody and under what authority the jailor was detaining him in jail. The order of the District Magistrate shows that a number-bailable warrant was ordered to be issued. The petition of the respondent shows that Bipat Gope was arrested under the order of the Senior Deputy Collector what authority the Senior Deputy Collector had of ordering Bipat Gopes rearrest is number clear from this record. The High Court has stated that Bipat Gope surrendered on May 1, 1958, to whom he surrendered is number clear. It is also stated in the petition that number-bailable warrant of arrest was ordered to be withdrawn and the record was sent to the District Magistrate for companyfirmation who withdrew the number-bailable warrant ordered to be issued. When the record was sent to the District Magistrate for companyfirmation and that was done by the District Magistrate thereafter is also number shown. In the absence of a properly drawn up return accompanied by proper documents it is number possible to find out what exactly happened in regard to the rearrest of Bipat Gope and it is for that reason that the filing of a proper return is necessary and is insisted upon it most jurisdictions. It was argued on behalf of the appellant that the release of Bipat Gope was under R. 549 of the Jail Manual Rules which are issued under the Prisons Act and that releases thereunder are companyditional. The appellant was anxious to get the opinion of this Court as to the true meaning and extent of Rule 549 under which, according to the appellant, Bipat Gope was released. On this record it is number clear as to the rule under which he was released. It appears from the petition of the respondent under Art. 226 that the respondent made an application for the release of Bipat Gope on the ground that he was seriously ill. There are on the record certificates by Dr. V.N. Sinha, F.R.C.S., Professor of Clinical Surgery at the Patna Medical College stating the discase Bipat Gope was suffering from and that he was number improving under the treatment he was being given. It was also stated therein that he would improve if he was released. This was on February 21, 1958. The Civil Surgeon of Patna on March, 1, 1958, again enquired from Dr. V.N. Sinha if the prisoner Bipat Gope was in danger of death from illness. Upon this on March 3, 1958, Dr. V.N. Sinha said - The companyplications of the disease i.e. of ventral hernia, peotic ulcer and stress and strain syndrome sometime prove fatal. and on March 5, 1958, it was stated that he was in danger of death but was likely to improve if released. The superintendent of District Jail, Patna, sent a letter to the District Magistrate giving all these various particulars. Upon that a numbere was made by Judicial Peshkar in which he stated In this companynection Jail Manual Rule 548 1 and 2 and 3 and Rule 549 may be seen. The District Magistrate has power to pass order for the release of the prisoner, if the petitioners sentence does number exceed six months under the above Rules. From the sentence sheet of release from the Jail authority it appears that the prisoner has only 4 four months and 3 three days unexpired period of sentence. These rules may kindly be seen and necessary orders passed. The order of the District Magistrate was Allowed release in the circumstances. It is number clear from this as to the Rule under which Bipat Gope was released. It was companytended on behalf of the appellant that the release must have been under R. 549 and number under any other Rule and in support reliance is placed on the release order of Bipat Gope which is in Form No. 105. That Form mentions Rules 548, 549 and 552 and the Rule which was number appropriate had to be scored out but numbere of these Rules was scored out. But at the bottom of the Form there is a declaration of two persons who stated that they are willing to take charge of Bipat Gope and bound themselves to surrender him at any time before the date of his expiry i.e. July 9, 1958 if required to do so. Here it may be stated that the support of the relevant Rules is set out in Form 105 as follows - Rule 549 - There is numberhope of his recovery either in or out of Jail I companysider it desirable that he be allowed the companyfort of dying at home. Rule 549 - The prisoner is in danger of death from illness and there is probability of his recovery if he is released. On the basis of the order of the District Magistrate which is referred to above dated March 7, 1958 and Form 105 it was submitted that the release must have been under R. 549. The orders on the record do number make that clear. Neither the order of the District Magistrate number the Form 105 shows that Bipat Gope was released under R. 549 and number under any other Rule. The State has number cared to make it clear in any return made on an affidavit filed as to the Rule under which Bipat Gope was released and then it is number shown as to what lawful authority there was for his rearrest. In this companynection the observations of Lord Atkin in Eshugbayi Eleko v. The Officer Administering The Government of Nigeria 1931 A.C. 662, 670 are appropriate and applicable In accordance with Britain jurisprudence numbermember of the executive can interfere with the liberty or property of a British subject except on the companydition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should number shrink from deciding such issues in the face of the executive. It is the same jurisprudence which has been adopted in this companyntry on the basis of which the companyrts of this companyntry exercise jurisdiction. It has number been shown in this case that there was any lawful authority under which Bipat Gope was rearrested and in the absence of such lawful authority Bipat Gopes detention cannot be supported and is illegal. In the circumstances the remedy under Art. 226 is rightly applicable to the facts of this case.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 877 of 1964. Appeal by special leave from the judgment and order dated May 9, 1963 of the Allahabad High Court in Execution First Appeal No. 410 of 1962. Ravinder Narain, for the appellant. P. Goyal and E. C. Agarwala, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave raises the question whether an order,by an executing Court setting aside an auction sale as a nullity is an appealable order In pursuance of a decree passed against the appellant judgment debtor the judgment creditor took out execution proceedings. An auction sale of the factory belonging to the appellant was ordered by the executing companyrt. In pursuance of that order the Amin the auction officer held an auction sale on September 10, 1962. Respondent No. 1 was held to be the highest bidder for Rs. 2,45,000/-. The appellant challenged the auction sale alleging that the Amin had number realised 1/4th of the sale proceeds immediately after the said auction was closed as required by 0.21 R. 84 of the Code of Civil Procedure. His case was that the Amin realised the said amount and deposited it in the Treasury on ,September 11, 1962. The appellant thereafter filed an application under O. 21 R. 84 before the Civil Judge, Aligarh. Respondent No. 1 companytested that application stating that he had , tendered the said amount immediately after the auction, that the said amount being large the Amin hesitated to accept it in cash as it was too late that day to .deposit it in the Treasury. He also alleged that the Amin wanted ,to know whether he companyld accept a cheque instead of cash and therefore took Chhotelal, his representative, along with him to the residence of the Munsif, Hathras, to take directions. Leaving Chhotelal in the car outside the Munsifs residence, the Amin went in to companysult the Munsif if he companyld accept a cheque but the Munsif advised him to take cash. Thereafter the Amin returned to the car where he accepted the said amount from Chhotelal and issued there and then a receipt therefor. The respondents .case therefore was that he offered the amount immediately, that is was numberfault of his that the Amin did number then accept it, and that it was paid in any event soon after the auction and therefore payment was in companysonance with 0. 21 R. 84. The Civil Judge refused to accept the case of respondent No. 1 ,and setting aside the auction sale held it to be a nullity. He rejected the report of the Amin that he had accepted the money immediately after seeing the Munsif outside the Munsifs house where Chhotelal was in the car. The Civil Judge thought that the Munsifs evidence did number support the Amin as the Munsif had stated that it was only the Amin who had companye to see him. Therefore the evidence of the Amin and Chhotelal that the amount of Rs. 61,250/- was paid in the car outside the Munsifs house was number free from doubt. What impressed the Civil Judge was the fact that in his report dated September 10, 1962 the Amin had number mentioned the fact of his having received the said amount and the receipt issued by him that day. There was however an endorsement at the foot of that report made on September 11, 1962 in which the Amin had mentioned the fact of his having received the said amount and the receipt having been issued by him on September 10, 1962. The Civil Judge, however, felt that if he had received that amount on September 10, 1962, the Amin was bound to have mentioned that fact in the body of that report that very day, that is, on the 10th and that therefore the endorsement was written out as an afterthought to support Chhotelals evidence. Apart from the evidence of the Amin, the Munsif and Chhotelal, there was also the evidence that respondent No. 1 had that day withdrawn Rs.1,51,000 from the Bank and had available with him cash and there was numberreason why he should number have paid Rs. 61,250 from that amount that very day. Respondent No. 1 filed an appeal against the said order in the High Court. The High Court accepted the Amins report and his evidence and reversed the judgment and order of the Civil Judge holding that there was numberbreach of 0. 21 R. 84 and that the sale therefore companyld number be set aside as a nullity. The High Court held-and rightly, that there was numbercontradiction between the Munsifs evidence and that of the Amin. For, if Chhotelal was waiting in the car outside the Munsifs house the Munsif was number likely to see him and would naturally depose that the Amin alone had companye to his house for companysulting him. The High Court also rightly held that there was numbervalid reason to doubt the Amins report, the said receipt and the evidence that sufficient cash was available with respondent No. 1 from which he had numberreason number to pay the amount of Rs. 61, 250 immediately after the auction and that though some time elapsed after the auction as the Amin went to companysult the Munsif the said amount was paid in accordance with 0. 21 R. 84. Counsel for the appellant tried to challenge this finding of fact by the High Court but as the evidence on this question was clear and the High Courts finding was fully justified we, in our discretion under Art. 136 declined to permit him to go into the evidence with a view to reopen the said finding. The only question which the appellants Counsel then raised was that the order of the Civil Judge was made under 0. 21 R. 84, and that order was number a final but an interlocutory order. It did number companyclude the execution proceedings but only ordered a fresh auction sale therefore numberappeal Jay before the High Court. He also companytended that the sale being companytrary to 0. 21 R. 84, it was a nullity and therefore 0. 21 R. 90 did number apply. Hence there companyld be numberappeal against the said order. These very companytentions were raised before the High Court but they were rejected on the ground that the appellants application companyld number be under 0. 21 R. 84 and that therefore the application was under R. 90 of that order, that is, that it was an objection to a material irregularity in the companyduct and publication of the said sale. The High Court also held that such an objection related to execution of the decree and therefore would fall under section 47 of the Code and an appeal lay against such an order. In Manilal Mohanlal Shah Ors. v. Sardar Sayed Ahmed Saiyed Mohammed Anr. 1 this Court has held that Rules 84 and 85 of Order XXI being mandatory if they are number companyplied with there would be numbersale at all and the companyrt is bound to order a resale. That decision also held that since there would be numbersale and the imported sale is nullity there would be numberquestion of a material irregularity in the companyduct of the sale and R. 90 would therefore number apply. An application under R. 90 as held by the High Court therefore would number lie. The question then is whether section 47 of the Code would apply. It has been companysistently held in a number of decisions by the Privy Council and the High Courts that section 47 is wide and should be liberally companystrued so as number to drive the parties to a separate suit and thereby prolong litigation. All questions relating to the execution, discharge or satisfaction of the decree which arise between the parties fall within the scope of this section. The Explanation added to the section in 1956 includes a purchaser at a sale in execution of the decree as a party to the suit. Consistently with the decisions giving a libreral interpretation to this section it has been held that an order setting aside an auction sale for number-payment of deposit as provided by R. 85 of O. 21 falls under section 47 irrespective of whether the purchaser is a decree-holder or a stranger. See Nandlal v. Siddiquan 2 The High Court of Madras has also held that where an auction purchaser has deposited the balance amount under R. 85 but has failed to lodge a receipt therefor and the companyrt orders re-sale, an application for review of such an order falls under section 47 and such an order is appealable. Veerayya v. Tirichirapalli District Board 3. Various High Courts have similarly held that when a sale in execution of a decree whose validity is number questioned is attacked on the ground that it is number merely irregular but illegal and void that must be done by a proceeding under section 47 and number by an independent suit. See cases companylected in Mullas C.P.C. 13th ed. Vol. 1 p. 236, footnote i . If the order setting aside the sale on the ground that the deposit as provided for under R. 85 was number made falls within the scope of section 47 there does number appear to be any reason why an order holding the sale to be a nullity on the ground that R. 84 was number companyplied with cannot also fall under that section. Under section 2 2 of the Code a decree is deemed to include the determination of any question falling within section 47. An execution proceeding numberdoubt is number a suit but the companybined effect of section 2 2 and section 47 is that an order passed in execution proceeding is tantamount to a decree in so far as regards the companyrt 1 1955 1 S.C.R. 108 A.I.R. 1957 All-558- A.I.R. 1961-Mad.409. passing it is companyclusively determines the question arising between the parties to the suit which expression number includes an auction purchaser and relating to the execution of the decree. Therefore if an order decides a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree it would fall under section 47 and would be a decree within the meaning of section 2 2 . If such an order is a decree it is appealable under section 96 of the Code. Reliance was placed on the judgment of the High Court of Bombay in Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mohamed 1 , from which the appeal came up before this Court , 2 where the High Court took the view that since it is the duty of an executing companyrt to order re-sale where companyditions of R. 84 are number companyplied with even though the Rule does number expressly provide for an application, if the Court sets aside the sale upon an application made to it it can be said to have acted suo moto and the order therefore would be under R. 84. It is however number necessary for us to decide whether it is so or number, for, the only question before us is whether such an order amounts to a decree and is therefore appealable. Counsel for the appellant then relied upon Mrs. Peliti v. Kanshi Gopal 3 where it was held that such an order was number appealable on the ground 1 that an auction purchaser even if he is number a stanger is number a party to the suit and 2 that such an order setting aside an auction sale would number be one relating to the execution, discharge or satisfaction of the decree and therefore number an order under section 47. The first ground numberlonger survives in view of the Explanation added to section 47. It therefore remains to be seen whether the second ground is a valid ground. In Bharat National Bank v. Bhagwan Singh 4 the judgment-debtor raised three companytentions 1 with regard to his objection to the proclamation of sale, 2 the jurisdiction of the executing companyrt and 3 limitation. The Division Bench which heard them upheld the first companytention holding that his objection to the proclamation was valid and therefore ordered a fresh sale but rejected his other two objections. In an application for leave to appeal to the Privy Council heard by a Fall Bench of that High Court, the judgment-debtor companytended that he was entitled to leave on the ground that though the first part of the order did number finally determine the rights of the parties the High Courts decision on the rest of his other two companytentions amounted to a decree. The Full Bench by a majority decision disallowed the application on the ground that there was numberfinal determination of the execution proceedings as the High Court had ordered a resale and even if the order in regard to the companytentions as to jurisdiction and limitation were to be companysidered to be a final determination the judgment of the High Court companyld number be divided 2,1.2 1 57 Bombay Law Reporter 10. A.I.R. 1939 Lah. 210. Ml Sup. C. 1.167-6 2 1955 1.S.C.R 108 A.I.R. 1943 Lah. 210. into parts. The question whether ordering a fresh sale would be a final determination if raised by an auction purchaser was number before the High Court. As regards the judgment-debtor the order obviously was number a final determination as the execution proceedings were number finally companycluded. The decision in Md. Zakaria v. Kishun 1 relied on by Counsel for the appellant laid down two propositions 1 that an order under R. 66 of 0.21 was number an appealable order and 2 that the only orders which are appealable are those which determine the rights of the parties to the execution. There can be numberobjection to these propositions. But this decision has numberbearing on the companytention raised before us and can therefore be of numberassistance. Mohit Narain Jha v. Thakan Jha 2 . is again a case of an order passed under 0.21 R. 66 refusing to numberify a certain lease in the proclamation of sale. There being numberdetermination of the rights of the parties and the order at best being a processual one the High Court was right in holding that such an order was neither a decree number appealable. The decision in Radhe Lal Ladli Persad 3 which the Counsel referred to does number also assist him but lays down on the companytrary that where a plea which is overruled is the subject of a separate petition under section 4 and it is a self companytained plea with numberreference to the other matters in dispute the order over ruling such a plea is final as regards that particular objection raised by the judgment-debtor and is appealable. In Pankaj Kumar v. Nanibala 4 the High Court was companycerned with the question whether the order in question was a final order under Art. 133 of the Constitution. The order against which an appeal to this. Court was sought for was one dismissing certain objections raised by the judgment-debtor. The order did number dispose of the execution proceedings in which it was raised and on that ground the High Court held that numberappeal lay before this Court and refused to issue the certificate. Thus, except for the decision in Mrs. J. Peliti v. Kanshi Gopal 5 numbere of the decisions relied on by Counsel relates to the question before us and therefore they are number of any assistance. As to what is a final order was stated by this Court in Jethanand Sons v. State of Uttar Pradesh 6 in the following terms An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties had to be determined, the order is number a final order within the meaning of Art. 133. .lm0 A.I.R. 1926 All. 268. 2 I.L.R. 4 Pat. 731. A.I.R. 1957 Punjab 92. 4 A.I.R. 1963, Cal. 524. A.I.R. 1939 Lah. 210. 6 A.I.R. 1961 S.C. 794. Similarly in Abdul Rahman v. D. K. Cassim 1 Sir George Lowndes observed The finality must be finality in relation to the suit. If after the order the suit is still alive in which rights of the parties have still to be determined numberappeal lies against it. The fact that the order decides an important and even a vital issue is by itself number material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one. In deciding the question whether the order is a final order determining the rights of parties and therfore falling within the definition of a decree in section 2 2 , it would often become necessary to view it from the point of view of both the parties in the present case-the judgment debtor and the auction-purchaser. So far as the judgment-debtor is companycerned the order obviously does number finally decide his rights since a fresh sale is ordered. The position, however, of the auction purchaser is different. When an auction-purchaser is declared to be the highest bidder and the auction is declared have been companycluded certain rights accrue to him and he becomes entitled to companyveyance of the property through the companyrt on his paying the balance unless the sale is number companyfirmed by the Court. Where an application is made to set aside the auction sale as a nullity, if the companyrt sets it aside either by an order on such an application or suo moto the only question arising in such a case as between him and the judgment debtor is whether the auction was a nullity by reason of any violation of 0. 21 R. 84 or other similar mandatory provisions. If the companyrt sets aside the auction sale there is an end of the matter and numberfurther question remains to be decided so far as he and the judgment-debtor are companycerned. Even though a resale in such a case is ordered such an order cannot be said to be an interlocutory order as the entire matter is finally disposed, of. It is thus manifest that the order setting aside the auction sale amounts to a final decision relating to the rights of the parties in dispute in that particular civil proceeding, such a proceeding being one in which the rights and liabilities of the parties arising from the auction sale are in dispute and wherein they are finally determined by the companyrt passing the order setting it aside. The parties in such a case are only the judgment-debtor and the auctionpurchaser, the only issue between them for determination being whether the auction sale is liable to be set aside. There is an end of that matter when the companyrt passes the order and that order is final as it finally determines the rights and liabilities of the parties, viz., the judgment-debtor and the auction-purchaser in regard to that sale, as after that order numberhing remains to be determined as between them. 1 63 I.A. 76. An auction sale is held in pursuance of execution proceedings taken out by the judgment-creditor and the order passed by the executing companyrt. Until the decree is satisfied or discharged the execution proceedings cannot be said to have been companypleted. It is by the payment of sale proceeds resulting from such sale that the decree is satisfied either in part or in whole. That being clearly the position it is difficult to companyprehend as to why as held in Mrs. JPeliti v. Kanshi Gopal 1 an order declaring an auction sale as a nullity cannot be said to be one relating to the execution discharge or satisfaction of the decree within the meaning of section 47.

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

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 40-46,48- 68, 70-74 and 76-86 of 1966. Appeals from the judgment and order dated September 2,1955 of the Andhra Pradesh High Court in Writ Petitions Nos. 96, 281, 303, 836, 1029, 1130, 1219 and 1497 of 1963, and 79, 94, 1 1 1, 112, 141, 142, 148, 149, 159, 167, 171, 172, 173, 183,256,267,286,443,491,497,549,571,591,611,616,680,695,700, 720, 725, 737, 760, 1148, 1464 and 1789 of 1964 respectively. V. Gupte, Solicitor-General and A. V. Rangam, for the appellants in C.A. No. 40 of 1966 . Ram Reddy, A. V. V. Nair and A. V. Rangam, for the appellants in C.A. Nos. 41-46, 48-68, 70-74 and 76 to 86 . A. Choudhury, and R. Thiagarajan for K. Jayaram, for the respondents Nos. 1-12, 14-19, 21-40, 42-57, 59-113, 115, 116, 118 to 143, 145-156, 159-168, 170, 172-175, 177, 186, 188, 190-196, 197 to 219, 221, 223-233, 235-240, 242-259, 261-330, 332-381, 384-387, 389-391, 393-445, 447-453, 455- 472, 474476, 479-485, 494-514 and 556 In C.A. No. 48 of 1966 and respondents Nos. 1, 4-21, 23-36, 38-43, 45-55, 57- 62, 64-76, 79, 80, 82, 83, 85, 87-92, 94, 96-99, 101-104, 106, 108, 109, 111157, 159-198, 200, 202-207, 209-212, 214, 219, 221 to 272, 274-277, 279-299 and 301-324 In C.A. No. 57 of 1966 . B. Krishnamurthy, K. Rajendra Chaudhuri and K. R. Chaudhuri, for respondent No. In C.A. No. 42 of 1966 respondents in C.A. No. 45 of 1966 respondents Nos. 1-80, 82-96, 98-129, 132-150, 152-207, 209-210 In C.A. No. 46 of 1966 and respondents Nos. 1-29, 31-110 In C.A. No. 68 of 1966 . R. Chaudhuri and K. Rajendra Chaudhuri, for respondents Nos. 1-7 and 9 in C.A. No. 53 of 1966 , respondents Nos. 1- 3, 5-9, 11, 12, 14, 17-21, 23 and 24 in C.A. No. 54 of 1966 and respondents Nos. 1, 2, 4-9, 11-16, 19-28, 30-33, 35-150, 152, 153, 155, 157, 197, 199-328, 330-357, 359-360 and 362-535 In C.A. No. 44 of 1966 . S. Rama Rao, for the respondent in C.A. No. 66 of 1966 . R. L. Iyengar, S. P. Nayyar, for R. H. Dhebar, for the intervener. The Judgment of the Court was delivered by Subba Rao, C.J. These 44 appeals by certificate are preferred against the companymon judgment of a Division Bench of the Andhra Pradesh High Court allowing the petitions filed by the respondents under Art. 226 of the Constitution for directing the State of Andhra Pradesh and other appropriate authorities to forbear from companylecting the assessment of land revenue under the provisions of the Andhra Pradesh Land Revenue Additional Assessment and Cess Revision Act, 1962 Act 22 of 1962 , hereinafter called the Principal Act, as amended by the Andhra Pradesh Land Revenue Additional Assessment and Cess Revision Amendment Act, 1962 Act 23 of 1962 , hereinafter called the Amending Act. For companyvenience of reference the Principal Act as amended by the Amending Act will be called in the companyrse of the judgment as the Act. The appellants raised the question of the companystitutional validity of the relevant provisions of the Act. The Principal Act was passed on September 27, 1962 and it came into force on July 1, 1962 and the Amending Act was passed on December 24, 1962, and it came into force on July 1, 1962. We are companycerned in these appeals only with the Act, i.e. Principal Act as amended by the Amending Act. It is said that the main object in passing the Principal Act was to rationalize the land revenue assessment in the State by bringing uniformity between Telengana and Andhra areas and to raise the rate of revenue in view of the rise in prices and to make the ryots bear equitably their share of the burden of the plans. With that view, as the long title of the Principal Act indicates, the said Act was passed to provide for the levy of additonal assessment on certain classes of land in the State of Andhra Pradesh and for the revision of the assessments leviable in respect of such lands and matters companynected therewith. The relevant provisions of the Act, i.e., the Principal Act as amended by the Amending Act, read thus lm15 Section 3. In case of dry land in the State, an additional assessment at the rate of seventy-five per cent of the assessment payable for a fasli year for that land shall be levied and companylected by the Government from the person liable to pay the assessment for each fasli year in respect of that land Provided that the additional assessment together with the assessment payable in respect of any such land shall in numbercase be less than fifty naye paise per acre per fasli year. Section 4. In the case of wet land in the State which Is served by a Government source of irrigation specified in classes 1, II, and III of the Table below, an additional assessment at the rate of one hundred per cent and in the case of wet land in the State which is served by a Government source of irrigation specified in Class IV thereof, an additional assessment at the rate of fifty per cent, of the assessment payable for a fasli year for that land shall be levied and companylected by the Government from the person liable to pay the assessment for each fasli year in respect of that land Provided that the additional assessment together with the assessment payable per acre per fasli year for any wet land specified in companyumn 1 of the Table below shall, in numbercase, be less than the minimum, or exceed the maximum, specified in the companyresponding entry against that land- a in companyumn 2 of the Table ill the case of a single crop wet land, and b in companyumn 3 of the Table in the case of a double-crop wet land. THE TABLE Rate of assessment Rate of assessment Description Payable for single payable for double of wet land crop wet land,per crop wet land,per acre. acre. 1 2 3 Class of, and Number of Settlement Mini-Maxi-Mini-Maxi extent of settlementmum classification ayacut under taram or Government Bhagana source of irrigation. a b c a b a b Rs.nP. Rs.nP. Rs.nP. Rs,nP. 1. 30,000 a 1 to 5 16to12 20.00 24.00 30.00 36.00 acres b 6 to 8 111/2 15.00 18.00 22.50 27.00 and c 9 and to9 81/2 12.00 15.00 18.00 22.50 above above below II. 5,000 a 1to 5 16 to 12 15.00 18.00 22.50 27.00 acres b 6 and ll1/2 12.00 15.00 18.00 22.50 and above above and but below below 30,000 acres. III.50 acres All All 9.00 14.00 3.50 21.00 and above tarams bhaganas but below 5,000acres. IV. Below 50 All All 6.00 12.00 9.00 18.00 acres. tarams bhaganas. Explanation.-In this Table,- The expression Government source of irrigation does number include a well, spring channel, parrekalava or cross-bunding b taram and bhagana classification shall be as registered in the revenue and settlement records c where numbersuch taram or bhagana classification is recorded in the revenue and settlement records, in respect of any land, that land shall be deemed to bear the taram or bhagana classification which a similar land in the vicinity bears. Section 8. 1 The District Collector, shall, from time to time, by numberification published in the Andhra Pradesh Gazette and the District Gazette, specify the Government sources of irrigation falling under classes 1, 11 and IV of the Table under section 4 and may in like manner, include in, or exclude from, such numberification any such source. Any person aggrieved by a numberification published under subsection 1 may, within forty-five days from the date of publication of the numberification in the Andhra Pradesh Gazette and the District Gazette, prefer an appeal to the Board of Revenue whose decision thereon shall be final. We will analyse the provisions of the said section at a later ,stage of the judgment. The High Court in deciding against the companystitutional validity of the said provisions gave in effect the following findings 1 Under s. 3 of the Act there is numberclassification at all in the case of dry lands. 2 The ayacut basis adopted in the Table under S. 4 of the Act has numberrational relation to the taram or quality of the land or the nature of the irrigation source. 3 The minimum fixed by the proviso in many cases is more than 100 per cent increase fixed by the section and thus, the proviso has exceeded the section. 4 The Act is silent as to the machinery for making the assessment, the criteria for fixation of the assessment, within the range of a fixed maximum and a minimum the rights and remedies of the assesses and the obligation of the Government to survey the lands. In short, the High Court struck down the said provisions on the ground that they offend Arts. 14 and 19 of the Constitution for three reasons, namely i in the,, case of dry lands there,. is numberreasonable classification at all as the flat minimum rate of 50nP. per acre has numberrelation to the fertility of the land, ii in regard to wet land there is numberreasonable relation between the quality of the land and the ayacut to which it belongs, and iii the procedure prescribed for the ascertainment of the rate is arbitrary and uncontrolled, The High Court, though it elaborately companysidered the question whether the revenue assessment was by authority of law within the meaning of Art. 265 of the Constitution, did number express a final opinion thereon. Mr. S. V. Gupte, learned Solicitor General, who appeared in one of the appeals filed by the State, companytended broadly that the High Court went wrong in companying to the companyclusion that the revenue assessment made under the Act had numberreasonable relation to the quality of the soil and pointed out that what the Legislature did was numberhing more than imposing a surcharge on previous rates fixed on the basis of tarams in the case of lands in Andhra and bhagana in the case of lands in Telengana. Mr. P. Ram Reddy, learned companynsel for the State in the other appeals, while adopting the arguments of the learned Solicitor General, argued in greater detail companytending that though the classification under S. 4. of the Act was apparently based upon ayacut, there was a companyrelation between the extent of the ayacut and the duration of water supply and that on that basis the classification companyld be sustained as it had a reasonable relation to taram or bhagana, as the case may be, and also to the duration of water supply. He took us through various statistical data to support the said companynection between the extent of ayacut and the duration of water supply. On the question whether there was any procedure for assessment, he strongly relied upon S. 6 of the Act and companytended that the said section, by reference, incorporated the pro-existing procedure for assessment in Andhra under the Boards Standing Orders and in Telengana tinder the relevant Acts. Mr. P. A. Chowdhury, learned companynsel for some of the respondents, argued that from time immemorial land assessment, both in Andhra and in Telengana, was scientifically settled on the basis of taram or bhagana, as the case may be, depending upon the quality and the productivity of the soil and that the Act in adopting the maximum and the minimum rates in respect of both dry and wet lands had ignored the said basis and instead adopted a thoroughly arbitrary method of fixing rates on the basis of ayacut which had numberrelevance at all to the quality or productivity of the land in respect of which a particular assessment was made. He further companytended that the Act omitted the entire machinery for assessment which would be found in almost every taxation statuts and companyferred an arbitrary and uncanalized power on the appropriate authority to impose assessments and companytended that the want of reasonable relation between the quality and fertility of the soil and the ayacut and the companyferment of arbitrary power of assessment would infringe the doctrine of equality enshrined in Art. 14 of the Constitution, both in its substantive and procedural aspects. Mr. Krishnamurthy, learned companynsel appearing for the respondents in some of the appeals, advanced an additonal argument in respect of lands fed by Yeleru river, that in any event the Act would number apply to the said land as they did number fall under any of the three categories companyered by the Act, namely, dry land, single-crop wet land and doublecrop wet land and that, therefore, numberassessment under the Act companyld be imposed in respect of the said lands. Before we companysider the said arguments it would be necessary to know briefly the nature and scope of the previous revenue settlements in Andhra and Telengana. After some experiments in the Madras State it was decided in 1865 that a general revision of assessment should be made based on accurate survey and classification of soils. This is known as Ryotwari Settlement. The Ryotwari Settlement was companyducted in seven stages 1 demarcation of boundaries, 2 survey, 3 inspection, 4 classification of soils, 5 assessment, 6 matters subsequent to assessment, and 7 records of settlement. The first two items were done by the Survey Department and the items Nos. 3 to 7 by the Settlement Department. It will be enough for the purposes of those appeals if we describe briefly how this classification of soils was done and the assessment made on that basis. Before proceeding to the detailed classification of soils in each village, there was a preliminary grouping of villages so as to bring together those which were similarly situated having regard to proximity to market, facility of companymunication and climate. Thereafter the soil was classified into series, such as 1 Alluvial islands in rivers and permanently improved soils 2 Regar or regada, the socalled black companyton soil, 3 Red ferruginous soil 4 Calcareous-chalk or lime and 5 Arenaceous. Every soil of the said series was again divided into classes on the basis of the variety and physical situation, such as pure clay or half sand or more than 2/3rd sand etc. The classes were again divided into sorts such as good or bad or ordinary or worst. Briefly stated land was classified into series into classes, and classes into sorts. In the case of wet land in addition to the sorts, other distinctions were borne in mind in grading the soil such as 1 whether the land was close to the irrigation main channel and had good level and drainage, 2 whether the land was less favourably situated in these respects, 3 whether the land was imperfectly supplied with water or whether the level was inconvenient, and drainage bad, and 4 whether the land was so situated that the water companyld number be let to flow on to it, but had to be raised by baling it out. After the said classification the next stage was to ascertain the amount of crop each different class and 35. sort of soil companyld produce. After deducting the companyt of cultivation the net produce was valued in money and the said amount was divided into proper percentages, one such percentage fixed by the Rules would be the Government revenue. On the basis of this classification a table of class and sort rates called Taram, which would apply equally to several soils was drawn up. We have gathered the necessary particulars from Land Systems of British India by Baden Powell, Vol. 3. The principles of settlement of ryotwari land and the manner the Government demand was arrived at is found in the Standing Orders of the Board of Revenue Vol. 1, Paras 1 and They are as follows The assessment shall be on the land, and shall number depend upon the description of produce, or upon the claims of certain classes such as Brahmans, Mahajanas, Purakkudis and others to reduced rates. The classification of soils is to be as simple as possible, and is to be alike everywhere instead of each village having its own The assessment is to be fixed so as number to exceed half the net produce after deducting the expenses of cultivation, etc. No tax is to be imposed for a second crop on dry land, but wet lands which in all ordinary seasons have an unfailing supply of water for two crops are to be registered as double crop, the charge for the second crop being generally half the first crop assessment. Remissions may be given when the supply of water fails. In cases where water is raised by baling an abatement of half a rupee per acre is allowed The Tahsildar, or in the companyrse of a resettlement, the Special Settlement Officer or Special Assistant Settlement Officer may allow the charge for second crop to be companypounded in respect of all irrigated lands of which the supply of water is number ordinarily unfailing. The rates of companyposition will be as follows For wet land irrigated from a second-class irrigation source one third For wet land irrigated from a third-class irrigation source, one fourth For wet land irrigated from a fourth-class irrigation source, one fifth For wet land irrigated from a fifth-class irrigation source, one-sixth. Where the irrigation is precarious and the supply is supplemented by wells, the divisional officer, or in the companyrse of a resettlement, the Special Settlement Officer, or Special Assistant Settlement Officer, may allow the charge for second crop to be companypounded at one-half of the rates referred to above, except under sources grouped in Class 1 or 2 for settlement purposes. Composition at such favourable rates may be allowed to lands for which the charge for second crop has already been companypounded at the ordinary rates. If the wells however fall into disrepair, the land should be transferred from companypounded double crop to single crop wet. Ryots may be permitted to companypound at any time and to any .extent even after the settlement. In carrying out the settlement with reference to the foregoing principles, the Settlement Department divides the soils into certain classes with reference to their mechanical companyposition, sub-divides them into sorts or grades with reference to their chemical and physical properties and other circumstances affecting their fertility, ,and attaches a separate grain value to each grade after numerous examinations of the actual outturn of the staple products in each class and sort of soil. The grain value is then companyverted into money at the companymutation price, based generally on the average of the 20-non famine years immediately preceding the settlement, for the whole district, with some abatement for traders profits and for the distance the grain has usually to be carried to the markets, and from the value of the gross produce thus determined, the companyt of cultivation and a certian percentage on account of vicissitudes of season and unprofitable areas is deducted, and one-half of the remainder is the maximum taken as assessment or the Government demand on the land. After this, soils of similar grain values, irrespective of their classification, are bracketed together in orders called Tarams, each with its own rate of assessment. These rates are further adjusted with reference to the position of the villages in which the lands are situated and the nature of the sources of irrigation. For this purpose villages are formed into groups, in the case of dry lands, with reference to their proximity to roads and markets, and, in the case of wet lands, with reference to the nature and quality of the water supply. This accounts for different rates of assessment being imposed on lands of similar soils, but situated in different groups or under different classes of irrigation. The broad principles of Ryotwari system may be stated thus Under that system the soil itself is taxed and the assessment is fixed on the land 2 Lands are classed into two general heads, namely, wet and dry 3 The soils of similar grain values are bracketed together in orders called Tarams each with its own rate of assessment 4 The rates are further adjusted, in the case of dry lands, with reference to the nature and quality of water supply. This system had been followed from time immemorial and had the general approval of the public. It has a scientific basis and throws equitable burden on the different classes of land. The system followed in Telengana which formed part of the erstwhile Hyderabad State was as follows. The relative scale of soils in respect of classification was in annas or annawari. The existing or the former rates were taken as the basis and were adjusted having regard to altered circumstances, the rise or fall of prices, increase in population, means of support and other advantages. No attempt was made to fix the assessment at a certain fraction of net assets for determining the money value of the produce of the field crop. But experiments were made by the Settlement Officers and with the results obtained therein the rates fixed were checked in order to ascertain what profit would be left to the cultivators. It will be seen that both in Andhra as well as Telengana area under the Ryotwari system, the land revenue which was a share of the produce of the land companymuted in money value varied according to the classification of soil based upon its productivity. Both in Andhra and Telengana areas under the Ryotwari system the soils of similar grain values were bracketed together in orders called Tarams or Bhagana and the rates were further adjusted in the dry land having regard to the grouping and in wet lands having regard to the water supply. But in both the cases, the quality and the grade of the soil divided in Tarams or Bhaganas as the case may be, was the main basis for assessment. It appears that the Ryotwari Settlements were abandoned in the year 1939. In the Report of the Land Revenue Reforms Committee of the Government of Andhra Pradesh, Hyderabad at page30 it is stated Re-settlement operations were never popular with the ryots, as in all cases due to the steady increase in prices, resettlements always led on to an increase in land revenue assessment. They were finally ordered to be abandoned in 1939. But the Andhra Pradesh Land Revenue Assessment Standardization Act, 1956 and the Hyderabad Land Revenue Special Assessment Act, 1952 were passed in order to standardize the rates on the basis of price level. They increased the rates by way of surcharge. In the year 1958 the Government of Andhra Pradesh appointed Land Revenue Reforms Committee to examine the existing system and rates of land revenue assessment and irrigation charges obtaining in the various regions of the State and to make suitable recommendations for their rationalisation. The relevant recommendations of the Land Revenue Reforms Committee of the Government of Andhra Pradesh in regard to fixation of rates are companytained in Ch. XV of Part 11 Vol. of its Report. They are No. 51. Land Revenue should be fixed as a percentage of the net produce. No. 53. As periodical settlements or resettlements are number recommended and as revisions in future will be based on prices and other relevant factors, it is number necessary to give an opinion as to what percentage of the net produce, the share of the Government should be. No. 71. In future, the assessment on irrigated land should be fixed on the basis of the dry land potential and the charge for irrigation should be on the basis of a charge, for service, by the Government. No. 72. The productivity of the soils, the capacity of the source based on the duration of supply and the ability of the ryots to bear the charge, are the chief factors which should be companysidered in determining the water charges. No. 73. In future, the assessment on irrigated land should companysist of dry assessment depending on the quality of soil and the charge for irrigation, based on the quantum of service rendered by the Government. Even though, the income from irrigated land is several times that of dry land, still for the service done, it is number suggested to levy a uniform rate, but graduated rates, related to the soil value of the lands, on which the yields would depend. It will be seen from the said recommendations that the Committee ,did number recommend Ryotwari settlements but suggested that assessments should be based on the quality and productivity of soils, the duration of supply of water and the prices. It may be numbericed that the Committee did number make ayacut the basis of the assessment. Let us number analyse the provisions of the Act. Under ss. 3 and 4 of the Act and the Table attached to S. 4, which have been extracted earlier, a companypletely new scheme has been laid down. Under S. 3, an additional assessment at the rate of 75 per cent of the earlier assessment is imposed and under the proviso the total asessment should number be less than 50 np. per acre for a fasli year. That is to say, irrespective of the quality and productivity of the soil, every acre of dry land has to bear a minimum assessment of 50 np. per acre for a fasli year. Coming to wet lands, under the Table appended to S. 4, they are divided into 4 categories depending upon the extent of the ayacuts. Ayacuts of 30,000 acres and above fall under the first class, 5,000 acres and above but below 30,000 acres, under the 2nd class, 50 acres and above but below 5000 acres, under the 3rd class, and below 50 acres, under the 4th class. A maximum and a minimum rate of assessment per acre are fixed for lands under ayacuts under each of the said class . Further, under class I the tarams and bhaganas are divided into 3 groups and different maxima and minima rates of assessment are fixed for each such group. In the 2nd class, tarams and bhaganas are put into two groups and different maxima and minima rates are fixed in respect of the two groups in classes 3 and 4 numberdistinction is made on the basis of tarams. Briefly stated, the whole classification is based on the extent of ayacut and in the case of classes 1 and 2 groups of tarams are relied upon only for introducing differences in the maximum and minimum rates. But the distinction between different taranis in each of the groups is effaced without any appreciable reason for such effacement. The minimum flat rates fixed for dry lands as well as for wet lands are number based upon the quality and productivity of the soil and in the case of wet lands the minimum rate is mainly founded on the extent of ayacut. Prima facie we do number see any reasonable relation between the extent of the ayacut and the assessment payable in respect of an acre of land forming part of that ayacut. The system of periodical ryotwari settlement held by the British Government on a scientific basis of quality and productivity of the soil with marginal adjustments on the foot of the duration of water supply in the case of wet lands and grouping of villages in the case of dry lands was given up. The scheme of surcharge on pre-existing rates, earlier accepted, was number adopted. The recommendation of the Committee that the assessment should be based on the duration of water supply among others was number followed. Instead the Act introduced in the case of both dry and wet lands an unscientific and arbitrary method of assessment imposing a minimum flat rate irrespective of the tarams. In the case of wet lands an additional irrational factor is laid down, viz., the rate is linked with the extent of the ayacut. In the case of wet land, a minimum flat rate with some variations within different groups in classes I and II and a minimum flat rate in respect of the groups in classes III and IV is fixed without any rational companynection between the two. Mr. P. A. Choudhury companytended that the scheme accepted by the Act was hit by Art. 14 of the Constitution inasmuch as it gave up practically the principle of tarams and bhaganas and accepted a flat rate irrespective of the quality and productivity of the land and, therefore, suffered from want of reasonable classification. He further companytended that the alleged justification for the classification, namely, the extent of the ayacut, had numberreasonable relation to the objects sought to be achieved by the Act, namely, rationalisation of the revenue assessments on land in the entire State. Mr. P. Ram Reddy, on the other hand, made a strenuous attempt to sustain ss. 3 and 4 of the Act on the basis of reasonable classification. He said that in the case of dry land the minimum rate of 50 np. was so low that in most of the cases 75 per cent of the previous assessment per acre would number be more than 5 np., and. therefore, the mere fact that in a few cases the 75 per cent of the assessment would fall on the other side of the line companyld number affect the validity of the classification for it would almost be impossible in any scheme of classification to avoid marginal cases. So too, in the case of wet lands, he argued, in regard to classes I and II, the duration of supply of water companyresponded to the extent of the ayacut in most of the cases and, therefore, though the classification was based upon the extent of the ayacut, it was really made on the basis of the duration of the water supply. As regards different groupings of the tarams and bhaganas in the first two classes, it was companytended that, as the differences between the tarams in each group were number appreciable and, therefore, if the rate of assessment was integrally companynected with the duration of the water supply, the said groupings of the tarams would number affect the reasonableness of classifications. In the case of classes 11 and IV, he companytended, that in respect of lands falling under the said two classes the difference in the rates between the different tarams was number appreciable and, therefore, that companyld be ignored. In short he maintained that there was an equation between the duration of supply of water and the extent of the ayacut and that the difference in the duration of water supply in the companytext of assessment of various lands has a reasonable relation to the aforesaid object of the Act sought to be achieved. Now let us test the companytentions of Mr. Ram Reddy with the facts placed before us. Wet Lands.some tabular statements under the headings average test and majority test have been placed before us in support of the companytention. The following are the figures under the Average test - A AVERAGE TEST Average Average AverageAverage Sl. Name of Taluk for less for bet-for bet-for more NO. than 3 ween 3 ween 5than 8 months and 5 and 8months months months Anantapur 26.4 50.5 120.8 Dbarmavaram 13.7 49.0 120.1 Tadipartri 16.4 62.0 126.0 Gooty 9.5 48.3 152.8 Kalyanadurga 10.2 52.9 152.5 Rayadurg 22.0 59.7 162-0 Mabakasira 15.2 55.4 143.2 Penukonda 10.9 60.6 186.4 Hindupur 15.1 58.3 108.7 Kadiri 9.9 43.9 147.9 Average of Taluks 14.954.1142-2 AverageAverage for bet-for between 3 ween 5 and 5 and 8 months months Ichapuram 8.3 69.6 Pathapattanam 24.7 47.4 Chipurapalli 2.5 139.3 Srikakulam 6.4 84.9 Sompeta. 6.6 80.8 Salur 13.8 Babbili 19.5 Palkonda 378 Narasannapet 35.5 Parvathipuram 84.2 Average of Taluks 8.2 57.9 Sl Average Average Average Average No Name of Taluk for less for betfor bet for more than 3 ween 3 ween 5 than 8 months and 5 and 8 months months months Mahabooba 4.8 26.8 60.6 Mulug 25.1 171.6 370.86086.46 The averages mentioned under different companyumns are the average extent of the ayacuts in each taluk companyrelated with particular months of water supply. If we take the average for less than 3 months in respect of different taluks in the Rayalaseema area, which is part of the Andhra, the extents of the ayacuts vary from 9 acres to 26 acres. In regard to the duration of water supply between 3 and 4 months, they vary from 43 to 62 acres. In regard to the duration of water supply between 5 and 8 months, they vary bet M4SupCI-67-4 ween 108 and 152 acres. So too in some of the taluks of the Andhra area the same variations are found. It is, therefore, number possible from the average test to hold that particular months of supply companyresponded with particular extent of the ayacut. The following tabular form represents the Majority test B MAJORITY TEST ----------------------------------------------------------- Between 5 months dura- Between 5 and 7 month.- tion Sl. Name of Taluk ----------------------------------- No. No irr- Total No of No of irr- Total gation irrigation gation No of irrigation sources sourcessources sources below 50 between 50 acres ayacut and 5000 acres ------------------------------------------------------------- Anantpur 15 30 19 19 Dbaramavaram 23 32 14 14 Tadapatri 7 9 1 1 Gooty 31 34 5 5 Kalyandurg 38 51 14 14 Kayadurg 5 9 2 2 Madakasira 37 62 25 25 Pandukonda 54 85 32 32 Hindupur 113 155 30 30 Kadiri 379 407 18 18 ------------------------------------------------------------ Below 5 months duration Between 5 8 months ----------------------------------------- Sl . Name of Taluk NO. of Total No No of Total No irrigation of irriirrigatof irrigasources gation tion tion sources sources sources below 50 between 50 acres ayacut and 5000 acres ----------------------------------------------------------- Ichapuram 165 166 35 79 Pathapatnam 927 1,054 147 570 Cheepurapalli 1,799 1,905 39 39 Srikakulam 465 470 127 129 Sompeta 1,082 1,099 125 131 Salur 594 614 Bobbili 1,629 1,771 Palkonda 178 290 Narasannapet 192 1.214 Paravathipuram including Karupum Section. 135 152 1 Mahabooba Taluk 111 111 90 90 P. 1456 to 1457 upto 10 acres Mulugu 179 231 12 12 Do No. of Irrigation Sources Between 5000 3,000 acres for more than 8 months-2 Total No. of Irrigation sources do-3 -------------------------------------------------------------- By majority test it is meant to companyvey that in each taluk the majority of the irrigation sources with a particular duration have a proportionate relation to the different extent of the ayacut mentioned in the Act. But the aforesaid tabular form does number support that assertion. In regard to water sources of below 5 months duration with an ayacut of below 50 acres, a companyparison of the first two companyumns shows that, except in a few cases, the test companypletely fails. No doubt in regard to irrigation sources supplying water for between 5 and 8 months of ayacut of 5,000 to 50,000 acres, the test appears to be satisfied. But the table itself is companyfined only to the, Rayalaseema area of the Andhra Part of the State and even in regard to that area there is numberunanimity, as the test fails in regard to sources within 5 months duration. Similar tests in Srikakulam district which is a part of the Andhra area of the State, shows that in many cases the majority test thoroughly breaks. Nothing can, therefore, be built upon the said tests. Further, the statements filed in the case showing the area irrigated for different durations clearly indicates that in many cases the additional assessment is more than 100 per cent or 50 per cent, as the case may be, of the original assessment showing thereby that the increase is on the basis of the flat minimum rate and number on the basis of the duration of the irrigation sources. Further water sources which supply water for more than 5 months but less than 8 months and have registered ayacuts below 5,000 acres fall under class IV. Some of the tanks which supply water for more than 8 months fall under different classes having regard to the ayacut which they serve. For instance, Kumbum tank has a registered ayacut of 10,000 acres, Bukkaepatnam tank has a registered ayacut of 184 acres and though both supply water for 8 months or More, the former falls under class II and the latter under class 111. A cursory glance through the statistics of the various districts tells the same tale. In the Warrangal district of the Telengana area. in Mahaboobad taluk numbere of the water sources supplies water for more than 8 months and numbere of them has an ayacut of more than 175 acres they are all classified under class III or class IV. In Malug taluk 3 tanks supply water for more than 8 months and they have ayacuts of 3,400 acres, 1,901 acres and 6,470 acres re.-,- pectively. The first two fall under class III and the last under class H. In Anantapur District, 14 out of 22 source which supply water for between 3 and 5 months are placed under class 111. III Dharmavaram taluk, out of 22 water sources of similar nature, 9 fall in class III. In Srikakulam district some of the water sources which supply water for more than 8 months fall under class III, because of their ayacut. The record also discloses that Sitanagaram Anicut system has a registered ayacut of 4,017 acres, Mahadevpuram tank system has only 1.500 acres. Dondaped tank system has 1,504 acres, Anamasamudram-Giraperu tank system has 826 acres, Jangamamaheswarapuram tank system has only 246 acres. Yerur Tank system has 1,500 acres, and Ponnalur tank system has 987 acres. Under S. 4 all these water sources fall under class III. It is number necessary to multiply instances. The High Court has carefully companysidered this aspect. Enough has been said to make the point that classification based on ayacut has numberreasonable relation to the duration of water supply. It is, therefore, clear that the ayacuts do number companyrespond to the number of months of water supply indeed, many tanks which supply water for a longer duration have smaller ayacuts. Tanks supplying water for equal durations fail under different classes. In a large number of cases the minimum rate is more than 100 per cent of the earlier assessment indicating thereby that the minimum rate has numberrelation to the quality or the productivity of the soil. In short, both ss. 3 and 4 in fixing the minimum flat rate for dry or wet lands, as the case may be, have ignored the well established taram principle and in the case of wet lands an attempt has been made to classify different systems on the basis of the ayacuts but the said test is unreasonable and has numberrelation to either the duration of water supply or to the quality or the productivity of the soil. The classification attempt in either case has numberreasonable relation to the objects sought to be achieved, namely, imposition of fair assessments and rationalisation of the revenue assessment structure. Indeed, an arbitrary method has been introduced displacing one of the most equitable and reasonable methods adopted all these years in the revenue administration of that State. The same unreasonableness is writ large on the provisions prescribing the machinery for assessment. The machintry provisions read thus Section 6. The additional assessment payable under this Act in respect of any land shall, for all purposes, be treated as land revenue. Section 8. 1 The District Collector shall, from time to time, by numberification published in the Andhra Pradesh Gazette and the District Gazette, specify the Government sources of irrigation falling under classes I, II and IV of the Table under section 4 and may in like manner, include in, or exclude from, such numberification any such source. Any person aggrieved by a numberification published under subsection 1 may, within forty-five days from the date of publication of the numberification in the Andhra Pradesh Gazette and the District Gazette. prefer an appeal to the Board of Revenue whose decision thereon shall be final. Section 8 has numberhing to do with the assessment. It only provides for specification of Government sources of irrigation falling under different classes. Therefore, the only provision which may be said to relate to procedure for assessment is s. 6. Mr. Ram Reddy argued that S. 6 by reference brought into the Act number only the entire provisions of the Andhra Pradesh Revenue Recovery Act but also the elaborate procedure for assessment prescribed by the Standing Orders of the Board of Revenue. He added that S. 6 incorporated by reference the Standing Orders of the Board of Revenue relating to procedure and thereby the said Standing Orders were made part of the statute. This argument has been pitched rather high and we do number think that the phraseology of the section permits any such interpretation. Under S. 6 the additional assessment payable under the Act shall be treated as land revenue. E.x facie this provision has numberhing to do with the procedure for assessment but the assessment payable is treated as land revenue. An assessment becomes payable only after it is assessed. The section, therefore, does number deal with a stage prior to assessment. The amount payable towards assessment may be recovered in the manner the land revenue is recovered. For the same reason it is number possible to read into the section the entire gamut of the Standing Orders of the Board of Revenue which deal with the mode of assessment for the said machinery also deals with a stage before - the assessment becomes due. If it was the intention of the Legislature that the Standing Orders of the Board of Revenue should be brought into the Act by incorporation, it would have certainly used appropriate words to companyvev that idea. It would number have left such an important provision so vague and particularly when the Legislature may be presumed to know that the question whether the Standing Orders are law was seriously raised in many proceedings. Therefore, if S. 6 is put aside, there is absolutely numberprovision in the Act prescribing the mode of assessment. Sections 3 and 4 are charging sections and they say in effect that a person will have to pay an additional assessment per acre in respect of both dry and wet lands. They do number lay down how the assessment should be levied. No numberice has been prescribed, numberopportunity is given to the person to question the assessment on his land. There is numberprocedure for him to agitate the companyrectness of the classification made by placing his land in a particular class with reference to ayacut, acreage or even taram. The Act does number even numberinate the appropriate officer to make the assessment to deal with questions arising in respect of assessments and does number prescribe the procedure for assessment. The whole thing is left in a nebulous form. Briefly stated, under the Act there is numberprocedure for assessment and however grievous the blunder made there is numberway for the aggrieved party to get it companyrected. This is a typical case where a taxing statute does number provide any machinery of assessment. On the said facts the question is whether ss. 3 and 4 of the Act offend Art. 14 of the Constitution. The scope of Art. 14 has been so well-settled that it does number require further elucidation. While the article prohibits discrimination, it permits classification. A statute may expressly make a discrimination between persons or things or may companyfer power on an authority who would be in a position to do so. Official arbitrariness is more subversive of the doctrine of equality than statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrarianess can be waved in all directions indiscriminately. A statutory provision may offend Art. 14 of the Constitution both by finding differences where there are numbere and by making numberdifference where there is one. Decided cases laid down two tests to ascertain whether a classification is permissible or number, viz., i the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ii that the differential must have a rational relation to the object sought to be achieved by the statute in question. The said principles have been applied by this Court to taxing statutes. This Court in Kunnathat Thathunni Moopil Nair v. The State of Kerala 1 held that the Travancompanye-Cochin Land Tax Act, 1955, infringed Art. 14 of the Constitution, as it obliged every person who held land to pay the tax at the flat rate prescribed, whether or number he made any income out of the property, or whether or number the property was capable of yielding any income. It was pointed out that that was one of the cases where the lack of classification created inequality. In East India Tobacco Co. State of Andhra Pradesh 2 though this Court again held that taxation laws also should pass the test of Art. 14 of the Constitution gave the caution that in deciding whether such law was discriminatory or number it was necessary to bear in mind that the State had a wide discretion in selecting the persons or things it would tax. The applicability of Art. 14 to taxation statute again arose for companysideration in Khandige Sham Bhat v. The Agricultural Income Tax Officer 3 and this Court affirmed the companyrectness of the decision in T. Moopil Nairs case 1 . In the companytext of a taxation law this Court held Though a law ex-facie appears to treat all that fall within a class alike, if in effect it operates unevenly on persons or property similarly situated, it may be said that the law offends the equality clause. It will then be the duty of the companyrt to scrutinize the effect of the law carefully to ascertain its real impact on the persons or property similarly situated. Conversely, a law may treat 1 1961 3 S. C. R. 77. 2 1963 1 S. C. R. 404. 3 1963 3 S. C. R. 899, 817. persons who appear to be similarly situated differently but on investigation they may be found number to be similarly situated. To state it differently, it is number the phraseology of a statute that governs the situation but the effect of the law that is decisive. If there is equality and uniformity within each group, the law will number be companydemned as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over others, so long as they are number singled out for special treatment. Taxation law is number an exception to this doctrine But in the application of the principles, the companyrts, in view of the inherent companyplexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification, so long it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. It is, therefore, manifest that this Court while companyceding a larger discretion to the Legislature in the matter of fiscal adjustment will insist that a fiscal statute just like any other statute cannot infringe Art. 14 of the Constitution by introducing unreasonable discrimination between persons or property either by classification or lack of classification. Two decisions relied upon by the learned companynsel for the appellant may number be numbericed. In C. V. Rajagopalachariar v. State of Madras 1 the facts were two Acts, namely. Madras Land Revenue Surcharge Act 19 of 1954 and Madras Land Revenue Additional Surcharge Act 30 of 1955 , were passed by the Madras Legislature increasing the land revenue payable by landlords to the extent of the surcharge levied. Those two Acts were questioned, inter alia, on the ground that they offended Art. 14 of the Constitution but the ground of attack was that the Acts fixed a slab system under which the rate of surcharge progressively increased from As. -/2/- to As. -/8/- on each rupee of the land revenue paid and that the relevant provision was discriminatory in its operation as a distinction had been made between rich and poor people and as the levy of the tax was different for different classes of owners. That companytention, for the reasons given therein, was negatived. In the said Madras Acts a surcharge was imposed in addition to the previous rates and the previous rates had been made on the basis of ryotwari settlements which did number offend Art. 14 of the Constitution and, therefore, a small addition to the said rates companyld number likewise infringe the said article. The present question did number arise in that case. Nor has A. I.R. 1960 Mad. 543. the decision of the Mysore High Court in H. H. Vishwasha Thirtha Swamiar or Sri Pejawar Mutt The State of Mysore 1 in regard to the Mysore Land Revenue Surcharge Act 13 of 1961 any bearing on the present question. There, as in the Madras Acts, the revenue surcharge levied wag an additional imposition of land tax and, therefore, the Mysore High Court held that it did number offend Art. 14 of the Constitution. In holding that Art. 14 was number infringed, the Court said We have before us a temporary measure. That is an extremely important circumstance. The State, number unreasonably, proceeded on the basis that a temporary levy companyld be made on the basis of existing rates. We can think of numberother reasonable basis on which the levy companyld have been made. It may be that in the result some areas were taxed more than others. But yet it cannot be said with any justification that there was any hostile discrimination between one area and another. It will be seen that in that case on existing rates based upon scientific data a surcharge was imposed as a temporary measure till a uniform land revenue law was enacted for the whole State. That decision, therefore, does number touch the present case. But in the instant case, as we have pointed out earlier, the whole scheme of ryotwari settlement was given up so far as the minimum rate was companycerned and a flat minimum rate was fixed in the case of dry lands without any reference to the quality or fertility of the soil and in the case of wet lands a minimum wet rate was fixed and it was sought to be justified by companyrelating it to the ayacut. Further, the whole imposition of assessment was left to the arbitrary discretion of the officers number named in the Act without giving any remedy to the assessees for questioning the companyrectness of any of the important stages in the matter of assessment, such as ayacut, taram, rate or classification or even in regard to the calculation of the figures. Not only the scheme of classification, as pointed out by us earlier, has numberreasonable relation to the objects sought to be achieved viz., fixation and rationalisation of rates but the arbitrary power of assessment companyferred under the Act enables the appropriate officers to make unreasonable discrimination between different persons and lands. The Act, therefore, clearly offends Art. 14 of the Constitution. In some of the appeals relating to Peddapuram and Kumarapuram villages another point was raised, namely, that a special rate bad been fixed which was neither for a single crop number for a double crop and that, therefore, they do number companye under any of 1 1966 1 Mys. L.J. 351,359. the provisions of the Act. In the view we have expressed on the other questions it is number necessary to numberice this argument. In the result the appeals are dismissed with companyts.

DR. ANAND, J. The appellants were tried for offences under Sections 302/34 and 449 IPC by the learned Judge of the Special Court. Appellants Husna and Jalour Singh were also tried for an offence under Section 25 of the Arms Act. Vide Judgment dated 18.4.1985, the trial companyrt companyvicted appellant Husna for an offence under Section 302 IPC and sentenced him to life imprisonment. He was also companyvicted for an offence under Section 449 IPC and sentenced to undergo seven years I. and for the offence under Section 25 of the Arms Act to nine months R.I. Appellant Rupa was companyvicted for an offence under Section 302/34 IPC and sentenced to life imprisonment. He was also companyvicted for an offence under Section 449 IPC and sentenced to undergo seven years R.I. Jalour Singh appellant was acquitted of the charges under Section 302/34 IPC and 449 IPC but companyvicted for the offence under Section 25 of the Arms Act and sentenced to undergo nine months R.I. Through this statutory appeal, the appellants have called in question their companyviction and sentence. Since the appeal was received from jail, an amicus curiae was appointed for the appellants. According to the prosecution case on 28th April 1984 Sadhu Ram PW1 was present at his house at about 9 p.m. along with his wife Kaushalya PW4, Satish Kumar deceased and other children. Two persons companymitted criminal trespass into the house with their faces muffled armed with pistols. Sadhu Ram PW1 raised an alarm and snatched away the pistol from one of the two intruders. During the scuffle, the face of one of the intruders got unmuffled. Satish Kumar, deceased, came to the help of his father. At the exhortation of appellant Rupa. Husna appellant fired a shot which hit Satish Kumar on his face and he fell down. Both Rupa and Husna ran out of the house where Jalour Singh armed with a pistol was already waiting. All the three accused then ran away. Sadhu Ram PW1 went near Satish Kumar and found him dead. Accompanied by Sham Lal and Malkiat Singh, Sarpanch of the village, Sadhu Ram PW1 went to police station to lodge a report. Formal FIR Ex.p1 was recorded on the basis of that report. Investigation was taken in hand and the investigating officer reached the house of PW1. Smt. Kaushlya PW4, the mother of deceased Satish Kumar was sitting near the dead body alongwith some other members of the family and interrogated. She became hysterical and companyld number give any clue or details of the occurrence. An inquest report was prepared and the dead body sent for post mortem examination. An empty cartridge of 315 bore was taken into possession from the spot, vide recovery memo Ex.p5. It was sealed into a parcel. A blood stained brick was also taken into possession vide memo Ex.p6. Later on two more empty cartridges of 315 bore and one empty cartridge of 32 bore were also recovered and taken into possession vide memo Ex. p7. The post mortem on the dead body was performed by Dr. Anup Sood PW7, which revealed the presence of an ante - mortem lacerated punctured wound with inverted marging to the doctor was caused due to shock and haemmrohage as a result of the aforesaid injury which was opined by him to be sufficient in the ordinary companyrse of nature to cause death. Since, numbernames of the assailants had been disclosed in the FIR, during the investigation a supplementary statement of PW1 was recorded in which he gave the names of the accused. Appellant Husna and Jalour Singh were arrested on June 3, 1984 and weapons recovered from them. Rupa appellant stood already arrested in some other case and was formally shown as arrested in the present case on June 12, 1984. The empties recovered from the spot and the pistol recovered from Husna appellant were sent to the Director, Forensic Science Laboratory, Chandigarh who vide his report Ex.p18 opined that the empty recovered from the spot was found to have been fired from the pistol of Husna appellant. The prosecution with a view to companynect the appellants with the crime examined Sadhu Ram PW1 besides Jit Singh PW2, draftsman PW5, investigating officer PW6 and Dr. Anup Sood PW7. Avtar Singh PW3 and Smt. Kaushalya PW4 were also tendered for cross-examination. The prosecution also filed the affidavits of police officials, whose evidence was of a formal nature at the trial. In their statements recorded under Section 313 Cr.P.C., the appellants denied the prosecution allegations against them and pleaded false implication. We have heard learned companynsel for the parties and examined the record. The trial companyrt acquitted Jalour Singh appellant of the charges under Sections 302/34 IPC and 449 IPC and the State has number filed any appeal against his acquittal. So far as the recovery of the pistol from him at the time of his arrest is companycerned, the evidence of the investigating officer has remained unchallenged on that aspect of the case in the crossexamination. The statement of the investigating officer is supported by the recovery memos also. Learned companynsel for the appellant was unable to point out any infirmity in the order of the trial companyrt companyvicting Jalour Singh for an offence under Section 25 Arms Act. In our opinion, the companyviction and sentence of the appellant Jalour Singh for the offence under Section 25 of the Arms Act is well merited and we do number find any reason to interfere with the same. Coming number to the case of appellants, Husna and Rupa. As already numbericed, in the FIR the names of both the appellants were found missing. They were only named in the supplementary statement of PW1 recorded during the investigation and in our opinion that statement, which was recorded during the investigation and in our opinion that statement, which was recorded during the investigation was hit by Section 162 Cr.P.C. and the trial companyrt companyld number have relied upon the same as a part of the FIR. All the three appellants are brothers. No overt act has been ascribed to Rupa appellant during the entire occurrence. It seems rather improbable that if PW1 had allegedly snatched away a pistol from Rupa appellant before Husna fired a shot at Satish Kumar, he would number have fired the same to prevent Husna from firing the shot. Besides numberempty recovered from the spot has been companynected by the ballistic expert with the pistol allegedly recovered from Rupa appellant. After carefully analyzing the evidence on the record, we are of the opinion that the prosecution has number been able to satisfactorily establish the case against appellant Rupa beyond a reasonable doubt. The possibility that he was named being the brothers of Husna cannot be ruled out. His presence at the time of occurrence has number been satisfactorily proved. His companyviction and sentence for the various offences as recorded by the trial companyrt therefore cannot be sustained. That Satish Kumar died as a result of a fire arm injury, as found by Dr. Anup Sood PW7, admits of numberdoubt. It was neither questioned in the trial companyrt number even before this companyrt. The statement of PW1 to the effect that it was Husna appellant who had fired the shot at Satish Kumar inspires companyfidence and receives ample companyroboration both from the medical evidence as well as the report of the ballistic expert, who found the empties recovered from the spot to have been fired from the weapon recovered from Husna appellant. Since, the empties had been sent to the ballistic expert much before Husna appellant was arrested and the weapon recovered from him, there is underlying assurance of the companyrectness of the prosecution case against him since the ballistic expert opined that the empties which had already been received by him had been fired from the weapon sent to him after the arrest of Husna, appellant.

N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18 per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in 2004 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18 cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums companyld grant damages companypensation for mental agony harassment where it finds misfeasance in public office. This Court has held that such companypensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must companyrelate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is number taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the companyies of the Claim Petitions made by the Respondent Complainant and the evidence, if any, led before the District Forum are number placed in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case the Respondent was allotted a plot bearing No. 77, Sector 21, Panchkula, in the year 1987. The Respondent paid all dues. The plot allotted turned out to be encroached upon. Thus Complainant companyld number take possession. In spite of several requests and letters the Appellants did number remove the encroachments and or take any steps to give possession. Thus the Respondent filed a companyplaint before the District Forum. The District Forum directed delivery of possession and awarded interest on the companypensation amount at the rate of 15 p.a. from 1st August, 1990 till payment. The District Forum also directed payment of Rs.20,000/- on account of mental agony and harassment and companyts of Rs.1,000/-. We are told that possession has since been given. The State Forum companyfirmed the Award in the Appeal filed by the Appellants. The Appellants filed a Revision before the National Commission. The National Commission has increased the rate of interest to 18 p.a. For reasons set out in the Judgment in the case Ghaziabad Development Authority vs. Balbir Singh supra , the order of the National Commission cannot be sustained. As stated above, the relevant papers regarding the claim made, the affidavits filed, the evidence submitted before the District Forum are number produced before this Court. In this case, the District Forum has ensured that the possession is given at the old rate. Where possession is given at old rate the party has got benefit of escalation in price of land, thus there cannot and should number also be award of interest on the money. However, companysidering the fact that the allotment was in 1987 and possession given very late, i.e., only in 1998, companypensation towards mental agony harassment is very low. Compensation should have been awarded for escalation in companyts of companystruction. The finding of the District Forum that there was numberproof is number companyrect. It is a fact of which judicial numberice should have been taken, that companystruction companyts have gone up. In future companypensation must be given under this head. On an ad hoc basis we maintain the Award of interest at 15 instead of increasing companypensation for mental agony and harassment and awarding companypensation for escalation in companyts of companystruction. We thus see numberreason to interfere in this case.