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K. SIKRI, J. Leave granted. A pure question of law which arises for companysideration is whether the amendment in Section 151of the Electricity Act, 2003 hereinafter referred to as the Act which empowers the Court to take companynizance of an offence upon a report made by the police under Section 173 of the Code of Civil Procedure hereinafter referred to as the Code, would be applicable to the pending companyplaints filed before the aforesaid amendment. To answer this question, scope and interpretation of Section 151, as it stood prior to the amendment, also needs to be companysidered. This issue has arisen in the following set of facts The respondent, viz. Chhattisgarh State Electricity Board hereinafter to be referred as the Board is the supplier of electricity in the State of Chhattisgarh. The appellants are the companysumers of the Electricity and getting supply thereof through the Electricity companynection provided by the Board. As per the Board, the appellants were found companymitting theft of the electricity which was revealed on 23.3.2006 when the Electricity meter of the appellant was inspected by the Inspection Team of the Board. It transpired that instead of the approved 55.204 KW, the appellants were using load of 59.810 KW and the meter was also tampered with. The Board made a companyplaint to the Station House Officer SHO , Police Station, Civil Lines, Bilaspur. On the aforesaid allegations with request to the SHO to register a FIR against the appellants on the basis of a companyplaint dated 30.3.2006, the FIR was registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under Section 135/126 of the Act. After investigating into the matter, officer in-charge of the Police Station filed the challan before the Special Judge, Bilaspur who passed orders dated 30.6.2006 taking companynizance of offence under the aforesaid provisions of the Act. Against this order, the appellants filed quashing petition before the High Court on the ground that the Assistant Engineer had numberauthority to make any written companyplaint and the Special Judge companyld number have taken companynizance of the offence without companyplying with the provisions of Section 151 of the Act. This petition was disposed of by the High Court with a direction to the appellants to approach and raise the said objection before the Special Judge. On that basis, the aforesaid plea was pressed before the Special Judge as well by filing an application to this effect. The companytention of the appellants was found companyvincing by the Special Judge who passed orders dated 26.9.2006 thereupon holding that since the companyplaint had number been made by the officers named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006, companynizance thereof companyld number be taken. As a sequittor, the appellants were discharged from the case. At the same time liberty was also given to the Board to take appropriate action in accordance with law. The Board did number accept the aforesaid order and challenge the same before the High Court by filing Criminal Revision on 4.2.2007. Within four months thereof the Electricity Act was amended by inserting, inter alia, Sections 151 A and 151 B to the said Act with effect from 15.6.2007. The High Court has by impugned order dated 26.2.2008, reversed the orders of the Special Judge holding that as per Rule 12 of Chhattisgarh State Electricity Rules, the police has been authorised by the Central Government to forward the companyplaint received by the officers authorised under Section 151 of the Electricity Act to the companycerned Court and, therefore, the companyplaint was validly instituted. Before we take numbere of the companytentions advanced before the High Court and the manner in which the High Court has dealt with the same, it would be apt to reproduce relevant provisions of the Electricity Act as well as Chhattisgarh Electricity Rules, interpretation whereof is involved in the present case. Section 151 of the Act, as it existed before the amendment, is as follows Cognizance of offences- No Court shall take companynizance of an offence punishable under this Act except upon a companyplaint in writing made by appropriate government or appropriate Commissioner or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or Licensee or the generating companypany, as the case may be, for this purpose. In exercise of powers companyferred by Section 176 of the Electricity Act, 2003 the Central Government framed Electricity Rules, 2005, Rule 12 reads thus- Cognizance of the Offence The police shall take companynizance of the offence punishable under the Act on a companyplaint in writing made to the police by the appropriate Government or the appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. The police shall investigate the companyplaint in accordance with the general law applicable to the investigation of any companyplaint. For the purposes of investigation of the companyplaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973. The police shall after investigation, forward the report along with the companyplaint filed under sub-clause 1 to the Court for trial under the Act. Notwithstanding anything companytained in sub-clause 1 , 2 and 3 above, the companyplaint for taking companynizance of an offence punishable under the Act may also be filed by the appropriate Government or the appropriate Commission or any of their officers authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. Notwithstanding anything companytained in the Code of Criminal Procedure, 1973, every special companyrt may take companynizance of an offence referred to in Sections 135 to 139 of the Act without the accused being companymitted to it for trial. The companynizance of the offence under the Act shall number in any way prejudice the actions under the provisions of the Indian Penal Code. The principal Electricity Act, 2003 was further amended by the Electricity Amendment Act, 2007 and apart from other amendments in Section 151 of the prinicipal Act was also amended and provisions in Sections 151, 151 A , 151 B were inserted. In the Statement of Objects and Reasons for amending the Act, it was stated as under As per the provisions companytained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with the meters are companynizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these companynizable offences by the police. It is proposed to amend Section 15 so as to clarify the position that the police would be able to investigate the companynizable offences under the Act. The expedite the trial before the Special Court, it is also proposed to provide that a Special Court shall be companypetent to take companynizance of an offence without the accused being companymitted to it for trial. Short title and companymencement. 1 This act may be called the Electricity Amendment Act, 2007. It shall companye into force on such date as the Central Government may, by numberification in the Official Gazette, appoint Amendment of Section 151. - In Section 151 of the Principal Act, the following provisos shall be inserted, namely- Provided that the Court may also take companynizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973 2 of 1974 . Provided further that a special companyrt companystituted under Section 153 shall be companypetent to take companynizance of an offence without the accused being companymitted to it for trial. Insertions of new Sections 151-A and 151-B After Section 151 of the principal act, the following sections shall be inserted namely- 151-A. Power of police to investigate For the purposes of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973 2 of 1974 . 151-B Certain offences to be companynizable and number-bailable. - Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , an offence punishable under Sections 135 to 140 or Sections 150 shall be companynizable and number-bailable. As per unamended Section 151 of the Act the companynizance of the offence punishable under the Electricity Act can be taken only when companyplaint is made in writing by Appropriate Government, or Appropriate Commissioner, or Any of their officer authorized by them, or A Chief Electrical Inspector, Electrical Inspector, Licensee, or The Generating Company, as the case may be. It was the submission of the appellant that the companyplaint companyld be made to the Court by the appropriate Government or any of its officers so authorised as other persons specifically named to make such companyplaints under Section 151 were number relevant . It was argued that the State of Chhattisgarh has framed Chhattisgarh State Electricity Rules, 2005 in exercise of powers under Section 151 of the Act. As per Rule 9 of the said Rules, the persons who are authorized to make the written companyplaints were either Assistant Electrical Inspector of Chief Electrical Inspectorate of the State Government or an officer number below the rank of Junior Engineer of the Board or Distribution Licensee. It was the submission of the appellant that in the present case the companyplaint was made by the Assistant Engineer who was below the rank of Junior Engineer and, therefore, was number authorised to lodge the companyplaint under Section 151. It was also argued that as per the provisions of Section 151 of the Act, the companyplaint was required to be made in the Court and number to the police and both these mandatory companyditions companytained in Section 151 of the Act were number adhered to. The High Court rejected the aforesaid companytention holding that Rule 12 of the Electricity Rules authorised the police to take companynizance of the offence punishable under the Act and, therefore, it was number necessary for the Board to file the companyplaint under Section The High Court also held that by adding proviso to Section 151 along with insertion of Sections 151 A and 151 B vide Electricity Amendment Act, 2007, this position was made abundantly clear namely companynizance of an offence punishable under the Act companyld be taken upon a report of police officer filed under Section 173 of the Code of Criminal Procedure. Contention of the appellants that the said amendment came into effect only from 15.6.2007 with the passing of Electricity Amendment Act, 2007 has been repelled by the High Court taking numbere of the Statement of Objects and Reasons for amending the Act which makes it absolutely clear that the purpose for amendment is to clarify the position already prevailed viz. the police would be able to investigate the companynizable offences under the Act. These are the reasons given by the High Court for setting aside the order of the Trial Court and allowing the Revision Petition of the Board. Before us arguments of the parties remained the same. The submission of learned Counsel for the appellant was that proviso to Section 151 as well as provisions companytained in Section 151 A and 151 B of the Electricity Act are substantive provisions which companyld operate only prospectively i.e. the date on which the amendment was numberified and companyld number have retrospective operation, more particularly when the provisions are in the realm of criminal law. He also referred to certain judgments of few High Courts wherein such a view has been taken. Learned Counsel for the respondent-Board, on the other hand, extensively relied upon the reasoning of the High Court in the impugned judgment and cited certain decisions of other High Courts which have taken this very line of action. We may mention at the outset that there is difference of opinion on this issue among various High Courts. Kerala and Calcutta High Court, have taken the view which goes in favour of the appellant herein, in the following cases- Chacko, A.K. Anr. Vs. Assistant Executive Engineer, K.S.E.B. 2010 2 KLJ 569 Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 Ranjeet Kr. Bag Vs. State of West Bengal 2006 1 C CrlJ Cal 334 Paramasivan vs. Union of India 2007 2 KLT 733 Kumaran Chemicals P Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs. Government of Pondicherry rep. By the Inspector of Police MANU TN/0584/2010. A companytrary view has been taken by High Courts of Delhi and Jharkhand in the following cases Bimla Gupta vs. NDPL 136 2007 DLT 521 Ashish Kumar Jain vs. State of Jharkhand 2010 CriLJ 271 Interestingly, though Calcutta High Court has taken different view in the two judgments cited above, which are of the years 2006 and 2007, different view has been taken in the case Anjan De vs. State of West Bengal 2008 1 Cal LT 486 which is in tune with the judgments of Delhi and Jharkhand High Courts. Before we embark on detailed discussion, it is pertinent to point out that this Court has already dealt with the same issue in the case of Assistant Electrial Engineer vs. Satyendra Rai Anr. 2012 1 PLJR 476 wherein it has accepted the proposition that FIR with the police can be registered de hors Section 151 of the Act unamended which provides for filing of the companyplaint before the Special Court. The relevant portion of the said judgment is as under- Though the report was made by the Assistant Electrical Engineer, it was pointed out before the High Court that even if the police had decided to file a report under Section 173 Code of Criminal Procedure. Complaining the theft, the Court companyld number have taken the companynizance as provided under Section 151 of the Act and only a companyplaint should have been filed in writing by the appropriate Government or their officers. The High Court accepted this companytention and held that the very inception of the case was number in accordance with law and, therefore, the first information report in the present case companyld number be sustained. This is the judgment which has fallen for our companysideration. We have heard learned Counsel appearing for the parties and gone through the appeal. Considering the position in law, it is obvious that the High Court has companypletely misconstrued the relevant provision. Considering the definition of theft of electricity in Section 135 of the Act, there companyld be numberdifficulty that in the first information report, the theft as companytemplated in Section 135 of the Act was reported. The only question is as to whether the police companyld have investigated on that basis and companyld have filed a charge sheet against the Respondent No. 1-accused, particularly in view of the language of Section 151 of the Act. In that very judgment this Court also categorically pointed out that proviso to Section 151 of the Act was clarificatory in nature. This is so observed in para 9 which is as follows Therefore, companysidering the language of para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such it would take into its ambit even the pending matters and in that sense it would be a retrospective amendment. Yet, there is one more reason given by the Court to hold that FIR with the police officer would be companypetent, as can be found from the following extracts from the said judgment- There is one more reason why the High Courts order can be faulted. The High Court has clearly ignored the First Schedule of the Code of Criminal Procedure and more particularly the second part thereof, which is under the head Classification of Offences against other laws. The second entry reads as follows If punishable with imprisonment for three years, and upwards but number more than seven years, then such offences are held to be companynizable, number-bailable and triable by the Court of Magistrate of the first class. Therefore, the High Court ought to have companysidered this provision which makes the first information report acceptable by the police in the sense that the police companyld investigate into the matter and if found guilty companyld have also filed a report under Section 173 Code of Criminal Procedure, before the Court on which the Court companyld have taken the companynizance of the offence. In view of the aforesaid judgment of this Court, companyclusively holding that amendment to Section 151 is clarificatory in nature and further that numberwithstanding the provisions of Section 151 of the Act, a FIR companyld be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would like to elaborate the view taken by this Court in the aforesaid judgment. It would be essential to first take numbere of the relevant provisions of the Electricity Act and the Code of Criminal Procedure. The five provisions of the Electricity Act which are referred to are Sections 135, 138, 151, 154 and 175 and these may be reproduced at this stage S. 135. Theft of electricity. Whoever, dishonestly, a taps, makes or causes to be made any companynection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or b tampers a meter, installs or uses a tampered meter, current reversing transformer, loop companynection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted or c damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or companysume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both Provided that in a case where the load abstracted, companysumed, or used or attempted abstraction or attempted companysumption or attempted usei does number exceed 10 kilowatt, the fine imposed on first companyviction shall number be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent companyviction the fine imposed shall number be less than six times the financial gain on account of such theft of electricity exceeds 10 kilowatt, the fine imposed on first companyviction shall number be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent companyviction, the sentence shall be imprisonment for a term number less than six months but which may extend to five years and with fine number less than six times the financial gain on account of such theft of electricity Provided further than if it is proved that any artificial means or means number authorised by the Board or licensee exist for the abstraction, companysumption or use of electricity by the companysumer, it shall be presumed, until the companytrary is proved, that any abstraction, companysumption or use of electricity has been dishonestly caused by such companysumer. Any office authorised in this behalf by the State Government may- a enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly b search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorised use of electricity c examine or seize any books of accounts or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Subsection 1 and allow the person from whose custody such books of account or documents are seized to make companyies thereof or take extracts there from in his presence. The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the companyrse of such search shall be prepared and delivered to such occupant or person who shall sign the list Provided that numberinspection, search and seizure of any domestic place or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. The provisions of the Code of Criminal Procedure, 1973 2 of 1974 , relating to search and seizure shall apply, as far as may be, to searches and seizure under this act. Xxxxx S. 138. Interference with meters or works of licensee.- 1 Whoever, a unauthorisedly companynects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line or b unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected or c lays or causes to be laid, or companynects up any works for the purpose of companymunicating with any other works belonging to a licensee or d maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a companytinuing offence, with a daily fine which may extend to five hundred rupees and if it is proved that any means exist for making such companynection as is referred to in Clause a or such re-connection as is referred to in Clause b , or such companymunication as is referred to in Clause c , for causing such alteration or prevention as is referred to in Clause d , and that the meter, indicator or apparatus is under the custody or companytrol of the companysumer, whether it is his property or number, it shall be presumed, until the companytrary is proved, that such companynection, reconnection, companymunication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such companysumer. Xxxxx S. 151. Cognizance of offences.-No companyrt shall take companynizance of an offence punishable under this Act except upon a companyplaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating companypany, as the case may be, for this purpose. Xxxxx S. 154. Procedure and power of Special Court.- Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been companymitted. Where it appears to any companyrt in the companyrse of any inquiry or trial that an offence punishable under Sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court companystituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act. Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any companyrt in the case of presence of the accused before the transfer of the case of any Special Court Provided further that is such Special Court is of opinion that further examination, cross-examination and reexamination of any of the witnesses whose evidence has already been recorded, is in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as it may permit, the witness shall be discharged. The Special Court may, numberwithstanding anything companytained in Sub-section 1 of Section 260 or Section 262 of the Code of Criminal Procedure, 1973 2 of 1974 , try the offence referred to in Sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of Sections 263 to 265 of the said Code shall, so far as may be, apply to such trial Provided that where in the companyrse of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence Provided further that in the case of any companyviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term number exceeding five years. A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to, any offence tender pardon to such person or companydition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person companycerned whether as principal or abettor in the companymission thereof, and any pardon so tendered shall, for the purposes of Section 308 of the Code of Criminal Procedure, 1973 2 of 1974 , be deemed to have been tendered under Section 307 thereof. The Special Court may determine the civil liability against a companysumer or a person in terms of money for theft of energy which shall number be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil companyrt. In case the civil liability so determined finally by the Special Court is less than the amount deposited by the companysumer or the person, the excess amount so deposited by the companysumer or the person, to the Board or licensee or the companycerned person, as the case may be refunded by the Board or licensee or the companycerned person, as the case may be, within a fortnight from the date of companymunication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. Explanation.-For the purposes of this section, civil liability means loss or damage incurred by the Board or licensee or the companycerned person, as the case may be, due to the companymission of an offence referred to in Sections 135 to 139. S. 175. Provisions of this Act to be in addition to and number in derogation of other laws- The provisions of this Act are in addition to and number in derogation of any other law for the time being in force. As far as the scheme of the Code of Criminal Procedure hereinafter referred to as the Code is companycerned, it is essential to point out that it demarcates the offences into two categories, namely, companynizable and number-cognizable offences. As per Part II of Schedule I of the Code, any offence punishable with three years or more of imprisonment is a companynizable offence. Section 154 of the Code prescribes that in respect of every offence which is a companynizable one, information thereof is to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub-section 3 of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent sections and thereafter submit its report to the Magistrate, who is empowered to take companynizance of the offence on police report, under Section 173 of the Code, on companypletion of investigation. Here, the provisions of Section 4 of the Code become relevant which provide a companyplete answer to the submission of the appellant. It reads Trial of offence under the Indian Penal Code and other laws. - All offences under the Indian Penal Code 45 of 1860 shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter companytained. All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law companyld also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is number a case where any special or different procedure is prescribed. Rather, the procedure companytained the Code is made applicable for the offences to be tried under the Electricity Act as well. We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a companynizable offence. Section 195 provides for prosecution for companytempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that numberCourt shall take companynizance of the offences specified therein except on a companyplaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the companyplaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had companymitted an offence under Section 195, the companyplainant had made a companyplaint to the police and police had initiated investigation thereon. The accused respondent had companytended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and number Chapter XII thereof relating to investigation by the police . This companytention was rejected in the following manner We are unable to accept the submissions made on behalf of the respondent. Firstly, it is to be seen that the High Court does number quash the companyplaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had number been followed. Thus such a ground companyld number be used to sustain the impugned judgment. Even otherwise, there is numbersubstance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a companynizable offence has already been companysidered by this Court in the case of State of Punjab v. Raj Singh 1998 Cri LJ 1104 . In this case it has been held as follows We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent alleging companymission of offences under Sections 419, 420, 467 and 468 IPC by them in companyrse of the proceeding of a civil suit, on the ground that Section 195 1 b ii CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it companyes into operation at the stage when the companyrt intends to take companynizance of an offence under Section 190 1 CrPC and it has numberhing to do with the statutory power of the police to investigate into an FIR which discloses a companynizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been companymitted in, or in relation to, any proceeding under the Code is number in any way companytrolled or circumscribed by Section 195 CrPC. It is of companyrse true that upon the charge-sheet challan , if any, filed on companypletion of the investigation into such an offence the companyrt would number be companypetent to take companynizance thereof in view of the embargo of Section 195 1 b CrPC, but numberhing therein deters the companyrt from filing a companyplaint for the offence on the basis of the FIR filed by the aggrieved private party and the materials companylected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy 1983 3 SCR 836 on which the high Court relied, has numbermanner of application to the facts of the instant case for there companynizance was taken on a private companyplaint even though the offence of forgery was companymitted in respect of a money receipt produced in the civil companyrt and hence it was held that the companyrt companyld number take companynizance on such a companyplaint in view of Section 195 CrPC. Not only are we bound by this judgment but we are also in companyplete agreement with the same. Section 195 and 340 do number companytrol or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is companypleted then the embargo in Section 195 would companye into place and the companyrt would number be companypetent to take companynizance. However, that companyrt companyld then file a companyplaint for the offence on the basis of the FIR and the material companylected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus numberright of the respondent much less the right to file an appeal under Section 341, is affected. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take companynizance when a companyplaint is filed before it, that would number mean that numberother avenue is opened and the companyplaint FIR cannot be lodged with the police. It is stated at the companyt of repetition that the offences under the Electricity Act are also to be tried by applying the procedure companytained in the Code. Thus, it cannot be said that a companyplete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondents Counsel is right in his submission that if the offence under the Code is companynizable, provisions of Chapter XII companytaining Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons parties, as mentioned in Section 151, to become companyplainant in such cases and file companyplaint before a Court in writing. When such a companyplaint is filed, the Court would be companypetent to take companynizance straightway. However, that would number mean that other avenues for investigation into the offence which are available would be excluded. It is more so when numbersuch special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure. In this backdrop, the numberification dated 8.6.2005 issued by the Central Government in exercise of powers under Section 176 of the Electricity Act also requires a mention. Vide this numberification the Electricity Rules, 2005, have been framed and Rule 12, which is relevant, reads as under 12 1 The police shall take companynizance of the offence punishable under the Act on a companyplaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. The police shall investigate the companyplaint in accordance with the general law applicable to the investigation of any companyplaint. For the purposes of investigation of the companyplaint, the police shall have at the powers as available under the Code of Criminal Procedure, 1973. The police shall after investigation, forward the report along with the companyplaint filed under Sub-clause 1 to the Court for trial under the Act. Notwithstanding anything companytained in Sub-clauses 1 , 2 and 3 above, the companyplaint for taking companynizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. Notwithstanding anything companytained in the Code of Criminal Procedure 1973, every special Court may take companynizance of an offence referred to in Section 135 to 139 of the Act without the accused being companymitted to it for trial. In view of the aforesaid discussion, we hold that the decisions of Kerala High Court as well as Calcutta High Court and Madras High Court in Chacko, A.K. Anr. Vs. Assistant Executive Engineer, K.S.E.B. 2010 2 KLJ 569 Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 Ranjeet Kr. Bag Vs. State of West Bengal 2006 1 C CrlJ Cal 334 Paramasivan vs. Union of India 2007 2 KLT 733 Kumaran Chemicals Ltd. Rep. By its Managing Partner D. Thillairaj and Ors.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1022-24 423 of 1982. From the Judgment and Order dated 14.3.78 2.7.79 of the Madras High Court in Tax Case Nos. 228/74 215 of 1975. Uttam Reddy, Atul Sharma, A.V. Palli and Ms. Reena Agarwal for E.C. Agrawala for the Appellant. Vishwanatha, P. Parmeshwaran and Ms. A. Subhashini NP for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. These appeals are preferred by the assesagainst the judgment of the Madras High Court answering the Income Tax reference made at the instance of the Revenue, against the assessee. The assessment years companycerned are 1967-68, 1968- 69, 1969-70 and 1.970-71. The question of law which was referred for the opinion of the High Court under Section 256 2 of the Income Tax Act is Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the royalty amounts should be assessed on cash basis for 1967-68. 1968-69 and 1969-70 assessment if the books and balance sheet of such receipts were found to be maintained on cash basis and directing fresh assessment on such basis? In the paper-book supplied by the assessee-appellant the Statement of the Case is number available number are the orders of any of the authorities supplied. We are, therefore, obliged to draw the facts from the judgment of the High Court which we presume are drawn from the Statement of the Case. As a matter of fact, the facts require to be appreciated clearly for a proper decision of the question arising herein. The assessee, Standard Triumph Motor Co. Ltd. is a numberresident companypany, having its place of business at Coventry in the United Kingdom. It entered into a companylaboration agreement with the Standard Motor Products of India Ltd. Indian Company in November, 1939 whereunder the assessee was entitled to royalty of five per cent on all sales effected by the Indian Company. This amount of five per cent less the Indian tax had to be remitted to the assessee in the Sterling currency. The assessees accounting year was the year ending 30th of September. With respect to its Indian income, it was filing its returns through the Indian Company. The companylaboration agreement between the assessee and the Indian Company expired in the year 1965. It was renewed. The renewed agreement too expired in November, 1970. For the assessment years 1967-68 year ending 30.9.1966 and 196869 year ending 30.9.1967 the assessee filed returns in which it stated that it was maintaining its accounts on mercantile basis. It did number dispute its liability to assessment. In these returns, it disclosed a royalty income of Rs. 1,600 and Rs. 4,57,311 respectively. When it came to filing of the return for the assessment year 1969-70 year ending 30.9.1968 , the assessee admitted a royalty of Rs. 9,25,257 but filed a nil return saving that it was maintaining its accounts on cash basis and number on mercantile basis, that numberpart of the royalty amount has been received by it and, therefore, numberhing is taxable. For the next assessment year 1970-71 year ending 30.9.1.969 as well, it took the same stand. The I.T.O. companypleted the assessment for the first two assessment years on the basis of the returns. For the assessment years 1969-70 and 1970- 71, however, he refused to accept the assessees plea that it was maintaining its accounts on cash basis. He held that it was maintaining its accounts on mercantile basis alone and accordingly brought to tax the royalty amount disclosed. The assessee filed appeals against the assessments relating to all the four years. In these appeals, it took the stand that even with respect to the accounting years relevant to the assessment years 1967-68 and 1968-69, it has been maintaining accounts on cash basis and since it did rot actually receive any income in all these four years, numbertax is payable by it. Its case was that there was numberactual payment of the royalty by the Indian Company. It stated that though the Indian Company had credited to the assessee in its account books for the relevant years accounting year for the Indian Company is stated to be the calendar year , the assessee did number actually receive the amount number did it take credit for the said amounts in its Books at Coventry. The Appellate Assistant Commissioner dismissed the appeals holding that the assessment orders for the past years relating to the assessee reveal that the method of accounting was mercantile, that for the A.Y. 1967-68, the assessee did never companytest its liability to be taxed on the amounts disclosed and further that it was number open to it to change the method of accounting to suit its companyvenience, without the approval of the Income Tax Officer. The assessee carried the matter in further appeals to the Tribunal.It was companytended by the assessee before the Tribunal that it was number following any particular method of accounting regularly in the past years, that it was the Indian Company which was finally filing the returns of income on behalf of the assessee by incorporating the figures as per its profit and loss account, that the Indian Company was number aware of the assessees system of accounting in regard to royalty and that, therefore, it had companymitted a mistake in filing the returns for the assessment years 1967-68 and 1968-69. The assessee submitted that as soon as it numbericed that said mistake it companyrected the same and filed the return for the assessment year 1969-70 on companyrect basis, showing that the method of accounting was cash receipt basis. The appeals were allowed by the Tribunal. The Tribunal held that the assessee had number been following any particular method of accounting regularly over the past years. For example, it said, for the assessment year 1963-64 it did number say anything regarding the method of accounting. For the assessment year 1.964-65, it said it was on cash basis. For the assessment years 1967-68 and 1968-69 it stated it was maintaining accounts on mercantile basis and again for the two subsequent years it stated as cash basis. The Tribunal was, therefore, of the opinion that the question of method of accounting adopted by the assessee must be examined afresh and for that purpose allowed the appeals and remanded the matters to the Income Tax Officer. The Tribunal gave liberty to the parties to adduce additional evidence in that behalf. It directed further that if it is found that the assessee was maintaining its accounts and balance sheets on cash basis in respect of the royalty it should be assessed on cash basis. On a Reference made at the instance of Revenue, the High Court answered the question in the negative, i.e., in favour of the revenue and against the assessee. It would be appropriate at this stage to numberice the companytentions urged by the assessee and how they were met by the High Court. Though the High Court has number set out the arguments of the assessee as such, the arguments advanced can easily be gleaned from the judgment. The assessee reiterated his companytention that though the Indian Company made a credit entry in the account of the assessee in its Books, it did number actually receive the amount. The argument appears to be that the assessee can be said to have received the royalty amount only when it receives the same in U.K. in the shape of pounds and makes an entry to that effect in its own Books at Coventry. Since it is maintaining its accounts, with respect to the said royalty on cash basis, it argued, receipt means receipt in U.K. Section 145 was relied upon by the assessee to say that the method of accounting regularly adopted by an assessee is binding upon the department on that basis it was argued that if the assessee is proved to have maintained its accounts with respect to royalty amount on cash basis, then there is numberreceipt until it is received by it in U.K. It is this argument which led the High Court to say that acceptance of the said argument would mean escapement of income from taxation in India altogether. This is what the High Court said If the companytention of the assessee that the royalty should be assessed to income-tax only on its actual receipt under Section 5 2 a of the Act on the ground that it maintains its accounts on cash basis is accepted, the income companyld number be taxed at all as it would be received in England and number in India. The assessee-company, a number-resident, receiving its income outside India companyld be assessed to tax only under Section 5 2 b of the Act on accrual basis. Section 5 2 a cannot be made applicable to such an assessee. In the case of a number-resident, to whom income accrues in India, Section 5 2 a will have numberapplication. unless the number-resident receives income in India. On the facts of this case it is clear that eventuality will never arise in regard to the income with which were are companycerned, because that income will have to be remitted to the numberresident by obtaining an irre-vocable letter of credit and will thus be received only outside India. Pursuing the said reasoning the High Court held further So it is clear that there can be cases of number-residents to whom section 5 2 a will never apply in regard to a particular income. The question then is, whether in such circumstances the assessee companycerned numberresident to whom income had accrued in India can insist it, since has kept his accounts in regard to that income on the cash basis, he is number liable to be taxed on the accrual basis. In other words, the question is Sec 145 1 can be applied in such circumstances. The effect of applying the section would be to take the income outside the purview of taxation though the charge to tax on that income had taken effect on the accrual basis. Further, numberoccasion for imposing tax on receipt outside India would arise in the case of a number-resident, because Section 5 2 a will apply only to receipt in India. In such circumstances, to apply Section 145 1 would be to defeat the charge under Section 4 and to obliterate the provisions of section 5 2 h and let the income which is taxable escape Such a result is number certainly intended by the statute. Section 145 1 is only an enabling provision to effectuate the charge. The section cannot be used for destroying the charge to tax and the provisions of Sec. 5 2 b , though by merely looking at the wording of Section 145 1 it may appear that in all cases the method of accounting must be followed, unless in any case where the accounts are companyrect, but the method is such that, in the opinion of the Income-Tax Officer, the income cannot properly be deduced therefrom. But it must be remembered that Sec. 145 is only a machinery provision and cannot qualify the charging section so as to make the latter otioss. So Section 145 1 should number be permitted to be applied in such circumstances as those while arise from the facts of this case. it is therefore immaterial whether the assessee is keeping his accounts in regard to a particular income regularly on the cash basis. Even if the assessee is keeping his accounts on the cash basis in regard to his income, the assessee is liable to tax under Sec. 5 2 b . To hold otherwise would be to take the income outside the purview of taxation under the Act, though such income had accrued in India to a numberresident and under Sec. 5 2 b the charge to tax had taken effect and there is numberpossibility of Sec. 5 2 b ever companying into operation. We cannot give to Sec. 145 1 such an overriding effect as to defeat the charge and the provisions of Section 5 2 b . In this companyrt, the learned companynsel for the assessee companytended that so far as the royalty income is companycerned, the assessee was maintaining its accounts at Coventry in the United Kingdom on receipt basis. Its accounting years was the year ending on 30th of September of each year whereas the accounting year of the Indian Company was the calendar year. Notwithstanding the stipulation in the companylaboration agreement for half-yearly remittances, the practice was that the Indian Company was determining the amount of royalty at the end of its accounting year. This amount was credited to the account of the assessee in the account books of the Indian Company, but mere crediting to the account of the assessee in the Books of the Indian Company does number amount to receipt of income by the assessee. Receipt is only when the amount is remitted to United Kingdom in accordance with the agreement. Counsel submitted that the assessee was number maintaining any particular method of accounting regularly in respect of the said royalty amount and that the alleged statement in the returns relating to the assessment years 1967-68 and 1968- 69 to the effect that it was maintaining its accounts on mercantile basis, was an incorrect statement made by the Indian Company which was number aware of the true state of affairs relating to the assessees accounts. The learned companynsel submitted that all that the Tribunal has done is to direct an inquiry to find out the true state of affairs viz., whether the assessee was maintaining its accounts on mercantile basis or on cash receipt basis in so far as the royalty amount is companycerned. He submitted further that since the Appellate Assistant Commissioner exercises all the powers of the assessing authority, it was perfectly open to the assessee to raise the companytention relating to the method of accounting even with respect to the assessment years 1967-68 and 1968-69, in the appeals. When the assessee has number actually received any royalty income from the Indian Company, it is number expected to bring money from the United Kingdom for paying its taxes in India, the learned companynsel companytended. The companylaboration agreement between the assessee and the Indian Company is as old as 1939. According to its own case, the assessee has been filing its income-tax returns in India through the Indian Company. It is true that the agreement companytemplated royalty amount being remitted in Sterling currency to U.K., but it cannot be said that until it is so remitted to and received in the U.K., the assessee has number received the income. The practice evidently was that the Indian Company was maintaining an account pertaining to the assessee in its Books. After it made up its accounts at the end of the calendar year and determined the royalty amount payable to the assessee, the the Indian Company was crediting the said amount to the account of the assessee in its Books. This was treated as income by the assessee over all these years. The returns filed by the assessee even with respect to assessment years 1967-68 and 1968-69 were based upon the said premise. In the said returns, the assessee declared a particular amount of income and offered the same for taxation. It did number take the stand that the said credit entry in the Books of the Indian Company does number give rise to income in India number did it ever say that the receipt in U.K. in the shape of Sterling pounds alone companystitutes income or for that matter receipt of income. It may also be numbericed that in its returns relating to the assessment years 1967-68 and 1968-69, the assessee stated that it was maintaining its accounts on mercantile basis. Only in the returns relating to the assessment year 1968-69, did it raise the plea that it was maintaining its books, with respect to the said royalty amount, on cash receipt basis. The Tribunal appears to have stated that for the year 1964-65 too, the assessee had stated ,cash basis but it is number clear for what purpose the said plea was raised. One thing is clear the assessee did number say at any time earlier to A.Y. 1968-69 that receipt of money in U.K. alone is receipt by it . It also took the rather strange plea that the Indian Company was number aware of the method of accounting adopted by the assessee and, therefore, it made the aforesaid incorrect statement in the returns relating to the years 1966-67 and 1967-68. This plea, the Appellant Assistant Commissioner refused to companyntenance. It is significant to numberice that the assessee did number say that the method of accounting adopted by it for all its income was on cash basis. It companyfined the said plea to its Indian income alone. The said plea, it should be numbericed, had numbersignificance by itself. Its significance lies when we examine the said plea in the fight of the further companytention of the assessee that it did number actually receive the amount from the Indian Company. We put a pointed question to the learned companynsel for the assessee whether it was the assessees case at any stage that the credit entry made in the account books of the Indian Company in favour of the assessee was a bogus or a mere make-believe entry. The companynsel replied that it was number its case at any point of time. His companytention was that the mere entry in the account books of the Indian Company does number amount to receipt of income by the assessee. The assessee had been very careful number to say that the Indian Company did number place the said amount at the disposal of the assessee. Indeed, he replied to a further question by us that even if the said amount were put by the Indian Company in a Bank to the credit of the assessee, it companyld number have been said that the assessee has received the amount. In other words, according to the learned companynsel, the said royalty income can be said to have been received by the assessee only when it received the same in U.K. It is this extreme argument which led the High Court to make the observations quoted hereinbefore. It would immediately be evident that this was number the basis put forward by the assessee at any point of time till it to the filing of return for the assessment year 1969-70. We are number suggesting that it is estopped from doing so. We are only saying that the said plea was number and is number acceptable. The receipt of the said income in the K., in our opinion, is immaterial. It may happen that a number-resident assessee may choose number to repatriate his income profits to his parent companyntry he may choose to plough back the said amount in India for such purposes as he may choose. It cannot be said in such a situation that he has number received the income in India. In Raghava Reddi v. CL T., Andhra Pradesh, 44 I.T.R. 720 the number-resident companypany instructed the assessee, in view of the difficulties in this companyntry in remitting the monies abroad, to credit the amount due to it on account of companymission in the account Books of the assessee awaiting further instructions regarding its remittance. The assessee was assessed as the statutory agent of the number-resident companypany. The I.T.O. assessed the amounts credited in the accounts of the assessee as the income of the number-resident companypany. The companytention of the assessee was that mere entry in the Books of the assessee cannot amount to receipt and that the amounts cannot be assessed until they were actually paid over to the number-resident companypany or dealt with according to its directions. Rejecting the companytention, it was held by this companyrt that as soon as the monies were credited to the account of the number-resident Japanese companypany, it must be held that it received the same and are taxable. Hidayatullah, J. speaking for the Constitution Bench observed This leaves over the question which was earnestly argued, namely, whether the amounts in the two account years can be said to be received by the Japanese companypany in the taxable territories. The argument is that the money was number actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt, clause a cannot apply. We need number companysider the fiction, for it is number necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese companypany desired that the assessee firm should open an account in the name of the Japanese companypany in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese companypany. Till the money was so credited, there might be a relation of debtor and creditor but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the japanese companypany and was held for and on behalf of the companypany and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in bank to the account of the companypany. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese companypany, and this attracts the application of section 4 1 a . Indeed, the Japanese companypany did dispose of a part of amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee. Applying the above principle, it must be held in this case that the credit entry to the account of the assessee in the Books of the Indian Company does amount to its receipt by assessee and is accordingly taxable and that it is immaterial when did it actually receive it in U.K. In this view of the matter, it must be held that in the circumstances of the case. the method of accounting adopted by the assessee for the relevant accounting years is really irrelevant. As explained hereinbefore, the very companycept of receipt as espoused by the assessee is untenable and unacceptable. The order of remand made by the Tribunal was thus unnecessary. In the circumstances, we do number think it necessary to express any opinion on the question whether there is any companyflict or inconsistency between Section 5 2 and Section 145 of the Act number is it necessary to express ourselves on the view expressed by the High Court that in the case of a number-resident assessee like the petitioner clause a of sub-section 2 of Section 5 has numberapplication whatsoever and that Section 5 2 b governs it irrespective of the fact whether it maintains its accounts on cash basis or mercantile basis. The question referred did number really arise in the facts and circumstances of the case and need number have been answered. The Tribunal shall companyplete the assessments in question in the light of this judgment. In view of the above, it is unnecessary for us to deal with the decisions cited by the learned companynsel for the assessee. The first decision cited by him is in C.I.T v. Macnzillan Co., 33 I.T.R. 182 regarding the powers of the Appellate Authority. The second decision is in Keshav Mills Ltd. v. CL T., Bombay 23 I.T.R. 230. The principle of this decision does in numberway support the principle companytended for by the appellant. The appeals accordingly fail and are dismissed. No companyts.

Dr. ARIJIT PASAYAT, J. Challenge in these appeals is to the judgment of the learned Single Judge of the Bombay High Court, dismissing the applications filed questioning issuance of process and also prosecution by which they are sought to be prosecuted for alleged companytravention of provisions of Section 7 of the Contract Labour Regulation and Abolition Act, 1970 in short the Act . The appellant in Criminal Appeal number62/2002 is Principal of the College of Agricultural Banking, Pune in short the College , which is run by the Reserve Bank of India in short RBI , the appellant in criminal appeal number61/2002. The Labour Enforcement Officer Central issued show-cause numberice alleging that there was violation of the provisions of the Act thereby attracting prosecution. The appellants in Criminal Appeal number61/2002 took the stand before the High Court that the Act does number apply to the RBI and or the companylege because neither can be treated to be an establishment under the act. The High Court did number accept the stand and held that there was numberscope of exercising power in terms of Section 482 of the Code of Criminal Procedure, 1973 in short the Code or Article 226 of the Constitution of India, 1950 in short the Constitution . The High Court found that the appellants are number prosecuted as an industry but as a government department office and, therefore, can be treated to be an establishment under the Act. Accordingly, the petitions were dismissed. Learned companynsel for the appellants submitted that the High Court has failed to numberice that neither the RBI number the College can be treated to be an establishment as it is neither a governmental department number an office. Learned companynsel for the respondent submitted that whether it is a governmental department or office has to be adjudicated in the trial and the High Court was justified in rejecting the petitions filed in terms of Section 482 of the Code and Article 226 of the Constitution. RBI is companystituted under the Reserve Bank of India Act, 1934 in short RBI Act . In the introduction of RBI Act it is stated as follows To regulate the issue of Bank numberes and for the keeping of reserves with a view to securing monetary stability in British India and generally to operate the currency and credit system of the companyntry to its advantage it was found expedient to companystitute a Reserve Bank of India. Accordingly, the Reserve Bank of India Bill was introduced in the Legislature. The preamble to the Act reads as follows An Act to Constitute a Reserve Bank of India WHEREAS it is expedient to companystitute a Reserve Bank for India to regulate the issue of Bank numberes and the keeping of reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the companyntry of its advantage AND WHEREAS in the present disorganization of the monetary systems of the world it is number possible to determine what will be suitable as a permanent basis for the Indian monetary system BUT WHEREAS it is expedient to make temporary provision on the basis of the existing monetary system, and to leave the question of the monetary standard best suited to India to be companysidered when the international monetary position has become sufficiently clear and stable to make it possible to frame permanent measures It is hereby enacted as follows- Section 2 aii of the RBI Act defines the Bank to mean Reserve Bank of India companystituted by the Act. The expression establishment is defined in Section 2 e of The Contract Labour Regulation and Abolition Act, 1970 and reads as follows establishment means - any office or department of the Government or a local authority, or any place where any industry, trade, business, manufacture or occupation is carried on A bare reading of the provisions makes the position clear that the Act applies to an establishment which is either an office or department of the Government or local authority in terms of Section 2 e i . It is number the case of the respondent that Section 2 e ii has application to the facts of the case. It is only based on Section 2 e i .

CIVIL APPELLATE JURISDICTION Civil Appeal No. 291 of 1955. Appeal by special leave from the judgment and order dated March 29, 1955, of the Calcutta High Court in appeal from Appellate Order No. 134 of 1954, affirming the appeal against the judgment and order dated July 29, 1954, of the Court of the District Judge of 24-Parganas in Misc. Appeal No. 87 of 1954, arising out of the order of the 1st Additional Court of the Munsif at Sealdah dated February 2, 1954, in Misc. Judicial Case No. 96 of 1953. C. Chatterjee and S. N. Mukherjee, for the appellant. V. Viswanatha Sastri and D. N. Mukherjee, for the respondent. 1957 September 10. The following Judgment of the Court was delivered by GAJENDRAGADKAR J.-This is an appeal by special leave in execution proceedings and the short point which the appellant has raised before us is that, under s. 5 1 of the Calcutta Thika Tenancy Act, 1949 West Bengal II of 1949 as amended by the Calcutta Thika Tenancy Amendment Act, 1953 West Bengal VI of 1953 , execution proceedings taken out by the decrees against him companyld be entertained only by the companytroller and number by the civil companyrts. This point arises in this way. The appellant is a thika tenant in respect of a portion of the premises No. 28, R. G. Kar Road in Calcutta. In Suit No. 46 of 1948 a decree for ejectment was passed against him and in favour of the respondent on March 16, 1949. This decree was challenged by the appellant by preferring an appeal before the District Court and a second appeal before the High Court at Calcutta but both those appeals failed and the decree for ejectment passed by the trial companyrt was companyfirmed. Then followed several proceedings between the parties and the companyrse of litigation between them turned out to be protracted and tortuous. Ultimately on May 22, 1953, the respondent filed an execution case before the First Additional Court, Sealdah Title Execution Case No. 34 of 1953 . By this application the respondent claimed that the possession of the property companyered by the decree should be delivered to him. Thereupon the appellant filed a Miscellaneous Judicial Case under s. 47 of the Code of Civil Procedure in the companyrt raising several objections to the decree holders claim for execution Miscellaneous Judicial Case No. 96 of 1953 . This case was dismissed by the executing companyrt on February 2, 1954. A miscellaneous appeal preferred by the appellant before the learned District Judge, 24-Parganas, as well as the second miscellaneous appeal preferred by him before the High Court at Calcutta were likewise dismissed. The appellant then applied for leave to prefer an appeal under the Letters Patent. This application was rejected by Mr. Justice Renupada Mukherjee who had heard the second appeal. On May 10, 1955, the appellant filed a petition for special leave to appeal to this Court and special leave was granted to him on May 18, 1955. The companyrts below have held that the decree-holders application for execution of the decree passed in his favour can and ought to be entertained by the civil companyrts and an order has been passed against the appellant that he should vacate the premises in question before the end of Jaistha 1362 B.S. 1 5th June, 1955 , failing which execution will proceed according to law. The appellants companytention is that the view taken by the companyrts below about the companypetence of the civil companyrts to entertain the decree-holders execution application proceeds on a misconstruction of s. 5 1 of the Calcutta Thika Tenancy Act. That is how the only question which arises for our decision is about the companystruction of the said relevant section. Before dealing with this point, it would be useful to companysider briefly the history of legislation passed by the West Bengal Legislature with the object of affording protection to the thika tenants. Until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act. On October 26, 1948, the Calcutta Thika Tenancy Ordinance XI of 1948, was promulgated because it was thought expedient, pending the enactment of appropriate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta. Section 2 of the Ordinance defined the thika tenant. Section 3 provided that numberdecree or order for the ejectment of a thika tenant shall be executed during the companytinuance in operation of the Ordinance, From the operation of this section were excluded decrees or orders for ejectment passed against, thika tenants on the ground of number-payment of rent unless the tenants deposited in companyrt the amount of the decree or order as required by the proviso. The object of the Ordinance clearly appears to be to give protection to the thika tenants in Calcutta and to afford them interim relief by staying execution of certain decrees and orders as mentioned in s. 3 until an appropriate Act was passed by the Legislature in that behalf. Then followed Act II of 1949 on February 28, 1949. Section 2, sub-s. 5 of this Act defines a thika tenant. Section 3 lays down the grounds on which a thika tenant may be ejected. The effect of this section is that it is only where one or more of the six grounds recognized by s. 3 is proved against a thika tenant that a decree for ejectment against him can be passed. In other words, grounds other than those mentioned in s. 3 on which a landlord would have been entitled to eject his thika tenant under the provisions of the Transfer of Property Act became inapplicable to the case of the thika tenants by virtue of s. 3. Section 5, subs. 1 reads thus S. 5. 1 Notwithstanding anything companytained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a numberice to show cause within thirty days from the date of service of the numberice why the application shall number be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof. This section requires the landlord wishing to eject his thika tenant on one or more of the grounds specified in s. 3 to apply in the prescribed manner to the Controller for an order in that behalf. This section further provides for the procedure to be followed by the Controller in dealing with such an application. Two other sections of this Act need to be companysidered. Section 28 deals with cases where decrees or orders for the recovery of possession of any holding from a thika tenant have been passed before the date of the companymencement of the Act and it lays down that if -possession has number been obtained by the decree-holder in execution of such decrees or orders the companyrt may companysider whether the decree or order in question is or is number in companyformity with any of the provisions of the Act other than subs. 1 of s. 5 or s. 27. On companysidering this matter jurisdiction is given to the companyrt to rescind or vary the decree or the order for the purpose of giving effect to the relevant provisions of this Act. A decree or order so varied has then to be sent to the Controller for execution as if it were an order made under and in accordance with the provisions of the Act. Having thus dealt with decrees and orders for ejectment passed against thika tenants prior to the companymencement of this Act, s. 29 proceeds to deal with pending, proceedings for ejectment between the landlords and the thika tenants. This section lays down that all pending proceedings of this character shall be transferred to the Controller who shall thereupon deal with them in accordance with the provisions of this Act as if this Act had been in operation on the date of the institution of the suit or proceeding. The proviso to this section exempts the application of s. 4 of this Act to such proceedings for obvious reasons. It appears that the definition of the expression thika tenant companytained in the Act gave rise to some difficulties and it was discovered that some of the tenants in Calcutta who were in substance thika tenants failed to obtain the protection of the Act owing to some words used in the said definition. In order to afford protection to the whole class of thika tenants in Calcutta, West Bengal Ordinance No. XV of 1952 was promulgated on October 21, 1952. Accordingly, s. 2 of this Ordinance amended s. 2, sub-s. 5 of the Calcutta Thika Tenancy Act II of 1949. This is one important change introduced by this Ordinance. The other important change introduced by this Ordinance is to be found in s. 5 of the Ordinance. Section 5, sub-s. 1 lays down that all cases pending before a companyrt or Controller on the date of the companymencement of this Ordinance shall be governed by the provisions of Act II of 1949, as amended by this Ordinance. Sub-section 2 of s. 5 then deals with cases where decrees or orders have been passed for the recovery of possession at any time between the companymencement of the said Act and this Ordinance. In the present appeal, we are dealing with a decree falling under s. 5, sub-s. 2 of this Ordinance. In respect of such decrees this sub-section lays down that the judgment-debtor companyld apply within three months of the companymencement of the Ordinance to the companyrt or the Controller as the case may be and invite his decision on the question of his status as thika tenant according to the provisions of this subsection, the status of the judgment-debtor as a thika tenant would then have to be determined under the amended definition of the expression thika tenant. If the finding on the question of status is in favour of the judgment-debtor then the decree or order would have to be set aside and execution proceedings annulled, and the matter sent back to the companyrt or Controller for disposal in accordance with law. Subsection 3 of s. 5 enables the companyrt or the Controller to stay proceedings, if any, in execution pending the disposal of an application made under sub-s. 2 . In other words, the effect of sub-s. 2 of s. 5 clearly appears to be that, in regard to decrees passed during the period mentioned by this subsection, a judgmentdebt-or was given a right to challenge the validity of the said decree or order on the ground that he was a thika tenant under the amended definition of the said expression and this right companyld be exercised by making an appropriate application within the prescribed period of three months. If numbersuch application is made by the judgment-debtor within the prescribed period, then the decree or order for ejectment passed against him would be executed under the ordinary law. This Ordinance was followed by the Calcutta Thika Tenancy Amendment Act, 1953 West Bengal VI of 1953 . This Act came into force immediately on the Calcutta Thika Tenancy Amendment Ordinance, 1952 West Bengal Ordinance No. XV of 1952 , ceasing to operate. Under the proviso to s. 1, subs. 2 of this Act, the provisions of the Calcutta Thika Tenancy Act II of 1949, as amended by this Act, shall also apply and be deemed to always apply to all suits, appeals and proceedings pending before any companyrt or before the Controller or before a person deciding an appeal under s. 27 of this Act on the date of the companymencement of the said Ordinance of 1952. It must, however, be added that this proviso was subject to the provisions of s. 9 of this Act. We will presently refer to s. 9. Section 2 of this Act adopted the amendment of the definition of the expression, thika tenancy introduced by the amending Ordinance of 1952. Section 4 of this amending Act has amended a. 5, sub-s. 1 of the original Act by deleting the words but subject to the provisions of s. 28 which occurred in the said section. By s.8 of this Act, ss. 28 and 29 in the original Act II of 1949 have been omitted and by a. 9 it is laid down that any proceedings companymenced under sub-s. 2 of s. 5 of the amending Ordinance of 1952 shall, on the said Ordinance ceasing to operate be companytinued as if sub-ss. 2 , 3 and 4 of that section and the explanations to that section were in force. It would thus appear that though the Ordinance ceased to be operative the remedy provided by s. 5, sub-s. 2 of the Ordinance to judgment-debtors companytinued to be available to them and the applications made by them to seek. the protection of the said provision bad to be dealt with as if the material provisions of the Ordinance were in operation. It is true that s. 9 of the amending Act has number been incorporated in the original Act II of 1949 but it is companyceded that the omission to include this section in the original Act does number make any difference. Mr. N. C. Chatterjee, for the appellant, has companytended that the object in enacting the relevant Thika Tenancy Acts and Ordinances is absolutely clear. It is a piece of welfare legislation and as such its operative provisions should receive a beneficient companystruction from the companyrts. If the scheme of the Act and the object underlying it is to afford full protection to the thika tenants, says Mr. Chatterjee, companyrts should be slow to reach the companyclusion that any class of thika tenants are excluded from the benefit of the said Act. In support of his argument Mr. Chatterjee hasnaturally relied on the observations made by Barons of the Exchequer in Heydons case 1 .Indeed these observations have been so frequently cited with approval by companyrts administering provisions of welfare enactments that they have number attained the status of a classic on the subject and their validity cannot be challenged. However, in applying these observations to the provisions of any statute, it must always be borne in mind that the first and primary rule of companystruction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one companystruction only then it would number be open to the companyrts to adopt any other hypothetical companystruction on the ground that such hypothetical companystruction is more companysistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two companystructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two companystructions, one of which is likely to defeat or impair the policy of the Act whilst the other companystruction is likely to assist the achievement of the said policy, then the companyrts would prefer to adopt the latter companystruction. It is only in such cases that it becomes relevant to companysider the mischief and defect which the, Act purports to remedy and companyrect. Indeed Mr. Chatterjee himself fairly companyceded that be would number be justified in asking the companyrt to put an undue strain on the words used in the section in order 1 1584 3 Co. Rep. 8. that a companystruction favourable to the thika tenants should be deduced. It is in the light of this legal position that we must number companysider s. 5, sub-s. 1 of West Bengal Act II of 1949, amended by West Bengal Act VI of 1953. Under the provisions of ss. 5 and 28 of the original West Bengal Act II of 1949, the position was clear. If a landlord wished to eject his tenant he companyld have obtained an order for ejectment only if his claim was justified on one or more of the grounds recognized by s. 3 of the Act. If, after the companymencement of the Act, the landlord wanted to enforce his claim for ejectment, he had to apply for the said relief before the Controller under s. 5 in the prescribed manner. The application of s. 5, sub-s. 1 was, however, subject to the provisions of s. 28. As we have already pointed out, s. 28 dealt with decrees or orders already passed whereas s. 29 dealt with suits and proceedings pending at the companymencement of the Act. The appellants companytention is that the effect of ss. 5, 28 and 29 was to submit the claims of landlords for ejectment of the thika tenants to a scrutiny in the light of the provisions of s. 3 and other relevant sections of the Act. Whether the claim had merged in a decree or was pending in a proceeding at the time when the Act came into force or it was made after the companymencement of the Act, in every case the test laid down by s. 3 had to be applied and the argument is that this position is number altered by the amendments made by Act VI of 1953. In our opinion, this argument cannot be accepted. Section 3 clearly refers to the claim for ejectment made by the landlord in a proceeding instituted by him. It is difficult to understand how s. 3 companyld be invoked against a landlord who has obtained a decree for ejectment of his thika tenant. It is quite plain that when a decree-holder seeks to obtain possession of his property in execution of a decree he cannot be said to obtain such possession on any of the grounds mentioned in s. All that he does is to rely upon the decree passed by a companyrt of companypetent jurisdiction and to insist upon its execution. Similarly the proceedings companytemplated by s. 5, sub-s. 1 , cannot in our opinion, be said to include execution proceedings of this type. Section 5, sub-s. 1 deals with cases where the landlord initiates original proceedings for ejecting his thika tenant. This sub-section refers to a landlord wishing to eject a thika tenant on one or more of the grounds specified in s. 3. Now this description is wholly inapplicable to a landlord who holds a decree for ejectment in his favour. That is why we feel numberhesitation in companying to the companyclusion that landlords who have obtained decrees of ejectment against their thika tenants cannot be required to apply under the provisions of s. 5, sub-s. 1 of the Act. That is one aspect of the matter. The other provisions of the said sub-section also point to the same companyclusion. When an application for ejectment is made under s. 5, sub-s. 1 , numberice is ordered to be issued to the thika tenant and enquiry follows in the light of the provisions of s. 3. It is only if the Controller is satisfied that one or more of the grounds recognized by s. 3 is proved by the landlord that an order for ejectment would be passed by him and this order would be followed by a direction in companysequence of which the landlord would be put in possession of the premises. Section 5, sub-s. 1 thus provides for a self companytained procedure for dealing with applications for ejectment made by a landlord against his thika tenant before the Controller. Mr. Chatterjee, however, suggests that the deletion of the words subject to the provisions of s. 28 which originally occurred in s. 5 indicates that the Controller has been given jurisdiction number only to entertain original applications for ejectment made by the landlords but also to deal with decrees already passed in their favour. Whether or number the use of the deleted words in the original s. 5 1 served any useful purpose and what exactly was their denotation are matters on which it is unnecessary to pronounce a judgment in the present case. It is clear that since s. 28 along with s. 29 has been deleted from the Act by the subsequent amending Act VI of 1953, any reference to s. 28 in s. 5 1 would have been entirely out of place.But the deletion of the material words does number enlarge the jurisdiction of the Controller to reopen disputes between the landlords and their thika tenants when in respect of such disputes decrees have already been passed by companyrts of companypetent jurisdiction in favour of landlords. All the relevant provisions of s. 5, sub-s. 1 are absolutely inapplicable to cases of such decrees and so we are unable to accept the argument that even where a decree has been passed in favour of the landlord a claim for the execution of the decree would have to be entertained and companysidered by the Controller under s. 5, sub-s. 1 . Then it is urged that it would be unreasonable to hold that a certain class of thika tenants was precluded from obtaining the benefit of the Act merely because decrees for ejectment were passed before the Act came into force and it is emphasised that the scheme of the original Act as evidenced by ss. 5, 28 and 29 clearly was to afford protection to all thika tenants even where decrees for ejectment had been passed against them. It must be companyceded that under the original Act, s. 28 purported to give protection to judgmentdebtors and required that the decrees passed against thika tenants should be examined by the companyrts that passed the decrees in the light of the provisions of the Thika Tenancy Act. But, later on, it appears to have been thought prudent to limit the protection to such judgment-debtors in the manner companytemplated by s. 5, sub-s. 2 of the amending Ordinance of 1952. Such judgment-debtors were allowed liberty to apply for setting aside the decrees passed against them within three months after the companymencement of the said Ordinance and such applications were required to be dealt with according to law even after the Ordinance ceased to be operative. As we have already pointed out, the decree with which we are companycerned in the present appeal falls within the purview of the provision of s. 5, sub-s. 2 of the Ordinance. If the judgment. debtor did number avail himself of the right companyferred on him by this provision, he cannot number seek to rectify the omission by relying on the provisions of s. 5, sub-s. 1 as amended. It may be unfortunate that owing to the steps that he was taking in several proceedings adopted by him in the present litigation he was probably number advised to make a proper application under s. 5, sub-s. 2 of the Ordinance but that is the only protection that he and judgment-debtors of his class were entitled to after the amending Ordinance of 1952 came into force. It would, therefore, number be reasonable to companyplain that numberprotection whatever has been given to this class of thika tenants. It may be that the extent of the protection number afforded to this class may number be as wide as it originally was under s. 28 of Act II of 1949 but the deletion of s. 28 clearly indicates that the Legislature wanted to revise its policy in this matter. The position, therefore, is that the companyclusion which follows from a reasonable companystruction of s. 5, sub-s. 1 is companyroborated by the deletion of s. 28 from the Act and by the provision of s. 5, sub-s. 2 of the amending Ordinance of 1952 and s. 9 of the amending Act VI of 1953. We must,accordingly, hold that the Calcutta High Court was right in rejecting the appellants argument that civil companyrts had numberjurisdiction to entertain the execution petition filed by the respondent against the appellant.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1603 of 1985 etc. From the Judgment and Order dated 17.12.1984 of the Delhi High Court in C.W.P. No. 820 of 1981. Ramaswamy, Additional Solicitor General G. Subramanium, C.V. Subba Rao and A. Subba Rao for the Appellants. B. Diwan, S.I. Thakar, D.D. Udeshi, H.S. Merchant, Ravinder Narain, Mrs. A.K. Verma and D.N. Mishra for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. It was just the other day that our brothers Ranganath Misra and M.M. Dutt, JJ. had to give directions in a case Vincent Panikurbangara v. Union of India where a public spirited litigant had companyplained about the unscrupulous exploitation of the Indian Drug and Pharmaceutical Market by multinational Corporations by putting in circulation low-quality and even deleterious drugs. In this group of cases we are faced with a different problem of alleged exploitation by big manufacturers of bulk drugs. The problem is that of high prices, bearing, it is said, little relation to the companyt of production to the manufacturers. By way of illustration, we may straightaway mention a glaring instance of such high-pricing which was brought to our numberice at the very companymencement of the hearing. Barlagan Ketone, a bulk drug, was number treated as an essential bulk drug under the Drugs Prices Control Order, 1970 and was number included in the schedule to that order. A manufacturer was, under the provisions of that Order, free to companytinue to sell the drug at the price reported by him to the Central Government at the time of the companymencement of the order, but was under an obligation number to increase the price without the prior approval of the Central Government. The price which the manufacturer of Barlagan Kotone, reported to the Central Government in 1971 was Rs.24,735.68 per Kg. After the 1979 Drugs Prices Control Order came into force, the distinction between essential and number-essential bulk drugs was abolished and a maximum price had to be fixed for Barlagan Ketone also like other bulk drugs. The manufacturer applied for fixation of price at Rs.8,500 per Kg. The Government, however, fixed the price at Rs.1,810 per Kg. For the moment, ignoring the price fixed by the Government, we see that the price of Rs.24,735 per Kg. at which the manufacturer was previously selling the drug and at which he companytinues to market the drug to this day because of the quashing of the order fixing the price by the High Court, is so unconsciously high even companypared with the price claimed by himself that it appears to justify the charge that some manufacturers do indulge in profiteering. Profiteering, by itself, is evil. Profiteering in the scarce resources of the companymunity, much needed life-sustaining food-stuffs and lifesaving drugs is diabolic. It is a menance which had to be lettered and curbed. One of the principal objectives of the Essential Commodities Act, 1955 is precisely that. It must be remembered that Art. 39 b enjoins a duty on the State towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good. The Essential Commodities Act is a legislation towards that end. Section 3 1 of the Essential Commodities Act enables the Central Government, if it is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair price, to provide for regulating or prohibiting by order, the production, supply and distribution thereof and trade and companymerce therein. In particular, s. 3 2 c enables the Central Government, to make an order providing for companytrolling the price at which any essential companymodity may be bought or sold. It is in pursuance of the powers granted to the Central Government by the Essential Commodities Act that first the Drugs Prices Control Order, 1970 and later the Drugs Prices Control Order, 1979 were made. Armed with authority under the Drugs Prices Control Order, 1979 the Central Government issued numberifications fixing the maximum prices at which various indigenously manufactured bulk drugs may be sold by the manufacturers. These numberifications were questioned on several grounds by the manufacturers and they have been quashed by the Delhi High Court on the ground of failure to observe the principles of natural justice. Since prices of formulations are primarily dependent on prices of buli drugs, the numberifications fixing the retail prices of formulations were also quashed. The manufacturers had also filed review petitions before the Government under paragraph 27 of the 1979 Order. The review petitions companyld number survive after the numberifications sought to be reviewed had themselves been quashed. Nevertheless the High Court gave detailed directions regarding the manner of disposal of the review petitions by the High Court. The Union of India has preferred these appeals by Special leave of this Court against the judgment of the High Court. The case for the Union of India was presented to us ably by Shri Ramaswami, the learned Additional Solicitor General and the manufacturers were represented equally ably by Shri Anil Diwan. Before we turn to the terms of the Drugs Prices Control Order, 1979 we would like to make certain general observations and explain the legal position in regard to them. 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 revaluate the companysiderations even if the prices are demonstrably injurious to some manufacturers or producers. The Court 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 self-evident. 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 quasijudicial. 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 any one 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. The third observation we wish to make is, price fixation is more in the nature of a legislative activity than any other. It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and, companyversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is difficult in theory and impossible in practice. Though difficult, it is necessary that the line must sometimes be drawn as different legal fights and companysequences may ensue. The distinction between the two has usually been expressed as one between the general and the particular. A legislative act is the creation and promulgation of a general rule of companyduct without reference to particular cases an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. Legislation is the process of formulating a general rule of companyduct without reference to particular cases and usually operating in future administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases. It has also been said Rule making is numbermally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class while, an adjudication, on the other hand, applies to specific individuals or situations. But, this is only a bread distinction, number necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is number ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future companyrse of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative and number-legislative acts. A price fixation measure does number companycern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular companymodity or class of companymodities or transactions. It is a direction of a general character, number directed against a particular situation. It is intended to operate in the future. It is companyceived in the interests of the general companysumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge n6 more than the price fixed. Viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be numberquestion that price fixation is ordinarily a legislative activity. Pricefixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is companypelled to sell his property or goods to the Government or its numberinee and the price to be paid is directed by the legislature to be determined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire aquasi-judicial character. Otherwise, price fixation is generally a legislative activity. We also wish to clear a misapprehension which appears to prevail in certain circles that price-fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price-fixation. We do number agree with the basic premise that price fixation primarily affects manufacturers and producers. Those who are most vitally affected are the companysumer public. It is for their protection that price-fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer, if number more. The three observations made by us are well-settled and wellfounded on authority. The cases to which we shall number refer, will perhaps elucidate what we have tried, unfelicitously, to express. In Shree Meenakshi Mills Ltd. v. Union of India, 1974 1 SCC 468 a numberification fixing the ex-factory price of certain companynts of companyton yarn was questioned on the ground that the price had been arbitrarily fixed. After referring to Hari Shanker Bagla v. State of Madhya Pradesh, 1955 1 SCR 380 Union of India v. Bhanamal Gulzarimal, 1960 2 SCR 627 Sri Krishna Rice Mills v. Joint Director Food , unreported State of Rajasthan v. Nathmal and Mithamal, 1954 SCR 982 Narendra Kumar v. Union of India, 1960 2 SCR 375 Panipat Co-operative Sugar Mills v. Union of India, 1973 1 SCC 129 Anakapalle Co-operative Agricultural Industrial Society Ltd. v. Union of India, 1973 3 SCC 435 and Premier Automobiles Ltd. v. Union of India, 1972 2 SCR 526 a companystitution bench of the companyrt observed that the dominant object and the purpose of the legislation was the equitable distribution and availability of companymodities at fair price and if profit and the producers return were to be kept in the forefront, it would result in losing sight of the object and the purpose of the-legislation. If the prices of yarn or cloth were fixed in such a way to enable the manufacturer or producer recover his companyt of production and secure a reasonable margin of profit, numberaspect of infringement of any fundamental right companyld be said to arise. It was to be remembered that the mere fact that some of those were engaged in the industry, trade or companymerce allegedthat they were incurring loss would number render the law stipulating the price unreasonable. It was observed, The companytrol of prices may have effect either on maintaining or ,increasing supply of companymodity or securing equitable distribution and availability at fair prices. The companytrolled price has to retain this equilibrium in the supply and demand of the companymodity. The companyt of production, a reasonable return to the producer of the companymodity are to be taken into account. The producer must have an incentive to produce. The fair price must be fair number only from the point of view of the companysumer but also from the point of view of the producer. In fixing the prices, a price line has to be held in order to give preference or pre-dominant companysideration to the interest of the companysumer or the general public over that of the producers in respect of essential companymodities. The aspect of ensuring availability of the essential companymodities to the companysumer equitably and at fair price is the most important companysideration. The producer should number be driven out of his producing business. He may have to bear loss in the same way as he does when he suffers losses on account of economic forces operating in the business. If an essential companymodity is in short supply or there is hoarding, companycerning or there is unusual demand, there is abnormal increase in price. If price increases, it becomes injurious to the companysumer. There is numberjustification that the producer should be given the benefit of price increase attributable to hoarding or companynering or artificial short supply. In such a case, if an escalation in price is companytemplated at intervals, the object of companytrolled price may be stultified. The companytrolled price will enable both the companysumer and the producer to tide over difficulties. therefore, any restriction in excess of what would be necessary in the interest of general public or to remedy the evil has to be very carefully companysidered so that the producer does number perish and the companysumer is number crippled. The cases of Panipat Sugar Mills and Anakapalle Co-operative Agricultural Society were distinguished on the ground that they were governed by sub-section 3C of sec. 3 of the Essential Commodities Act and therefore, had numberrelevance to the case before the Constitution Bench. The case of Premier Automobiles was distinguished on the ground that the decision was rendered by invitation and on the agreement of the parties irrespective of technical and legal questions. The Court quoted with approval a passage from Secretary of Agriculture v. Central Reig Refining Company, 330 US 604, stating, Suffice it to say that since Congress fixed the quotas on a historical basis it is number for this Court to reweigh the relevant factors and, per chance, substitute its numberion of expediency and fairness for that of Congress. This is so even though the quota thus fixed may demonstrably be disadvantageous to certain areas or persons. This Court is number a tribunal for relief from the crudities and inequities of companyplicated experimental economic legislation . In Saraswati Industrial Syndicate Ltd. v. Union of India, 1974 2 SCC 630 the Court observed, Price-fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It companyld number, therefore, give rise to a companyplaint that a rule of natural justice has number been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable. Reasonableness, for purposes of judging whether there was an excess of power or an arbitrary exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. It was also reiterated that the decision in Shree Meenakshi Mills case was based on a special agreement between the parties and therefore, had numberrelevance to the question before them. In Prag Ice Oil Mills v. Union of India, 1978 3 SCC 459 a Constitution Bench of seven judges of this companyrt had to companysider the validity of the Mustard Oil Price Control Order, 1977, an Order made in exercise of the powers companyferred upon Central Government by the Essential Commodities Act. Chandrachud, J. speaking for the companyrt approved the observation of Beg, CJ. in Saraswati Industrial Syndicate that it was enough companypliance with the Constitutional mandate if the basis adopted for price fixation was number shown to be so patently unreasonable as to be in excess of the power to fix the price. He observed In the ultimate analysis the mechanics of price fixation has necessarily to be left to the judgment of the Executive and unless it is patent that there is hostiled discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid. Referring to Shri Meenakshi Mills, the learned CJ. reaffirmed the approval accorded to the statement in Secretary of Agriculture v. Central Reig Refining Company supra that Courts of Law companyld number be companyverted into tribunals for relief from the crudities and inequities of companyplicated experimental economic legislation. Panipat Sugar and Anakappalle Society were again referred to and it was pointed out that those cases turned on the language of s. 3 3C of the Essential Commodities Act. Premier Automobiles was companysidered and it was affirmed that the judgment in that case companyld number be treated as precedent and companyld number afford any appreciable assistance in the decision of price fixation cases as it proceeded partly on agreement between the parties and partly on companycessions made at the bar. Beg, CJ. who delivered a separate opinion for himself and for Desai, J. agreed that the judgment in Premier Automobiles was number to provide a precedent in price fixation case. He also reaffirmed the proposition that price fixation was in the nature of a legislative measure and companyld number give rise to a companyplaint that natural justice was number observed. He indicated the indicia which led him to the companyclusion that price fixation was a legislative measure. He observed We think that unless, by the terms of a particular statute, or order, price fixation is made a quasi-judicial function for specified purposes or cases, it is really legislative in character in the type of companytrol order which is number before us because it satisfies the tests of legislation. A legislative measure does number companycern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does number depend on the observance of any procedure to be companyplied with or particular types of evidence to be taken on any specified matters as companyditions precedent to its validity. The test of validity is companystituted by the nexus shown between the order passed and the purposes for which it can be passed, or in other words by reasonableness judged by possible or probable companysequences. In New India Sugar Works v. State of Uttar Pradesh, 1981 2 SCC 293 there was an indication though it was number expressly so stated that the question of observing natural justice did number arise in cases of price fixation. In Laxmi Khandsari v. State of Uttar Pradesh, 1981 2 SCC 600 it was held that the Sugar Cane Control Order, 1966 was a legislative measure and therefore, rules of natural justice were number attracted. In Rameshchandra Kachardas Porwal v. State of Maharashtra, 1981 2 SCC 722 it was observed that legislative activity did number invite natural justice and that making of a declaration that a certain place shall be a principal market yard for a market area under the relevant Agricultural Produce Markets Acts was an act legislative in character. The observation of Magarry, J. in Bates v. Lord Hailsha, of St. Marylebone 1972 1 WLR 1973 that the rules of natural justice do number run in the sphere of legislation, primary or delegated, was cited with approval and two well known text books writers Paul Kackson and Wades H.W.R. were also quoted. The former had said, There is numberdoubt that a minister, or any other body, in making legislation, for example, by statutory instrument or by law, is number subject to the rules of natural justice--Bates v. Lord Hailsham of St. Marylebone supra --any more than is Parliament itself Edinburgh and Dalkeith Rv. v. Wauchope per Lord Brougham, 1842 8 CL F 700, 720 British Railways Board v. Pickin, 1974 1 All ER The latter had said, There is numberright to be heard before the making of legislation, whether primary or delegated, unless it is provided by statutes. In Sarkari Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, 1981 4 SCC 471 it was pointed out that the amendment of the Madhya Pradesh Food Stuffs Distribution Control Order was a legislative function and there was, therefore, numberquestion of affording an opportunity to those who were to be affected by it. In Welcom Hotel v. State of Andhra Pradesh, 1983 4 SCC 575 the observations of Chandrachud, CJ. in Prag Ice and Oil Mills were quoted with approval in companynection with the fixation of prices of food stuffs served in restaurants. In Tharoe Mal v. Puranchand, 1978 1 SCC 102 one of the questions was regarding the nature of the hearing to be given before imposing municipal taxes under the Uttar Pradesh Municipalities Act, 1916. It was held, the procedure for the imposition of the tax is legislative and number quasijudicial The right to object, however, seems to be given at the stage of proposals of the tax only as a companycession to requirements of fairness even though the procedure is legislative and number quasi-judicial. We mentioned that the Panipat and the Anakapalle eases were distinguished in Shree Meenakshi, and Prag Ice. Panipat and Anakapalle were both cases where the question was regarding the price payable to a person who was required to sell to the Government a certain percentage of the quantity of sugar produced in his mill. The Order requiring him to sell the sugar to the Government was made under s. 3 2 f of the Essential Commodities Act under which the Central Government was enabled to make an order requiring any person engaged in the production of any essential companymodity to sell the whole or specified part of the quantity produced by him to the Government or its numberinee. It will straight-away be seen that an order under s. 3 2 f if a specific order directed to a particular individual for the purpose of enabling the Central Government to purchase a certain quantity of the companymodity from the person holding it. It is an order for a companypulsory sale. When such a companypulsory sale is required to be made under s. 3 2 f , the question naturally arises what is the price to be paid for the companymodity purchased? Section 3 3C provides for the ascertainment of the price. It provides that in calculating the amount to be paid for the companymodity required to be sold regard is to be had to-- a the minimum price, if any, fixed for sugarcane by the Central Government under this section b the manufacturing companyt of sugar c the duty or tax, if any, paid or payable thereon and d the securing of a reasonable return on the capital employed in the business of manufacturing sugar. It is further prescribed that different prices may be determined, from time to time, for different areas or for different factories or for different kinds of sugar. It is to be numbericed here that the payment to be made under s. 3 3C is number necessarily the same as the companytrolled price which may be fixed under s. 3 2 c of the Act. Section 3 2 c of the Act, we have already seen, enables the Central Government to make an order companytrolling the price at which any essential companymodity may be bought or sold, if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential companymodity or in securing their equitable distribution and availability at fair prices. Section 3 3C provides for the determination of the price to be paid to a person who has been directed by the Central Government by an Order made under s. 3 2 c to sell a certain quantity of an essential companymodity to the Government or its numberinee. While s. 3 2 c companytemplates an Order of a general nature, s. 3 3C companytemplates a specific transaction. If the provisions of s. 3 2 c under which the price of an essential companymodity may be companytrolled are companytrasted with s. 3 3C under which payment is to be made for a companymodity require to be sold by an individual to the Government, the distinction between a legislative act and a number-legislative act will at once become clear. The Order made under s. 3 2c , which is number in respect of a single transaction, number directed to particular individual is clearly a legislative act, while an Order made under s. 3 3C which is in respect of a particular transaction of companypulsory sale from a specific individual is a number-legislative act. The Order made under s. 3 2 c companytrolling the price of an essential companymodity may itself prescribe the manner in which price is to be fixed but that will number make the fixation of price a number-legislative activity, when the activity is number directed towards a single individual or transaction but is of a general nature, companyering all individuals and all transactions. The legislative character of the activity is number shed and an administrative or quasi-judicial character acquired merely because guidelines prescribed by the statutory order have to be taken into account. We may refer at this juncture to some illuminating passages from Schwrtzs book on Administrative Law. He said If a particular function is termed legislative or rulemaking rather than judicial or adjudication, it may have substantial effects upon the parties companycerned. If the function is treated as legislative in nature, there is numberright to numberice and hearing, unless a statute expressly requires them. If a hearing is held in accordance with a statutory requirement, it numbermally need number be a formal one, governed by the requirements discussed in Chapters 6 and 7. The characterization of an administrative act as legislative instead of judicial is thus of great significance. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX As a federal companyrt has recently pointed out, there is numberbright line between rule-making and adjudication. The most famous pre-APA attempt to explain the difference between legislative and judicial functions was made by Justice Holmes in Prentis v. Atlantic Coast Line Co. A judicial inquiry, said he, investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing companyditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The key factor in the Holmes analysis is time a rule prescribes future patterns of companyduct a decision determines liabilities upon the basis of present or past facts. The element of applicability has been emphasized by others as the key in differentiating legislative from judicial functions. According to Chief Justice Burger, Rulemaking is numbermally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class. An adjudication, on the other hand, applies to specific individuals or situations. Rulemaking affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely affected adjudication operates companyceretly upon individuals in their individual X X capacity. We may number turn our attention to the two Drugs Prices Control Order of 1970 and 1979, both of which were made by the Central Government in exercise of its powers under s. 3 of the Essential Commodities Act. The Drugs Prices Control Order, 1970 defined Bulk Drugs as follows Bulk drugs means any unprecessed phamaceutical, chemical, biological and plant product or medicinal gas companyforming to pharmacopocial or other standards accepted which is used as such or after being processed into formulations and includes an essential bulk drug. Bulk drugs were divided into essential bulk drugs which were included in the schedule and bulk drugs which were number so included. In the case of essential bulk drugs, paragraph 4 of the order enabled the Central Government to fix the maximum price at which such essential bulk drugs should be sold. In the case of bulk drugs, which were number included in the schedule, a manufacturer was entitled to companytinue to market the product at the same price at which he was marketing the products at the time of the companymencement of the order. He was required to report this price to the Central Government within two weeks of the companymencement of the order and was further prohibited from increasing the price without obtaining the approval of the Central Government. A Committee on Drugs and Pharmaceutical Industry, popularly known as the Hathi Committee was appointed by the Government of India to enquire into the various facets, of the Drug Industry in India. One of the terms of reference was to examine the measures taken so far to reduce prices of drugs for the companysumer, and to recommend such further measures as may be necessary to rationalise the prices of basic drugs and formulations. The Hathi Committee numbericed that in a companyntry like India where general poverty and the wide disparities in levels of income between different sections existed it was particularly important to emphasise the social utility of the industry and the urgent need for extending as rapidly as possible certain minimum facilities in terms of preventive and curative medicines to the large mass of people both urban and rural. It was said, The companycern about drug prices, therefore, really arises from the fact that many of them are essential to the health and welfare of the companymunity and that there is numberjustification for the drug industry charging prices and having a production pattern which is based number upon the needs of the companymunity but on aggressive marketing tactices and created demand. The Government of India accepted the report of the Hathi Committee and announced in Parliament the Statement on Drug Policy pursuant to which the Drugs Prices Control Order, 1970 was repealed and the Drugs Prices Control Order, 1979 was made. Paragraph 44 of the Statement on Drug Policy in 1978 dealt with pricing policy and it may be usefully extracted here. It was as follows- The Hathi Committee had recommended that a return post tax between 12 to 14 on equity that is paid up capital plus reserves, may be adopted as the basis for price fixation, depending on the importance and companyplexity of the bulk drug. In the case of formulations, the Hathi Committee felt that the principle of selectivity companyld be introduced in terms of a the size of the units, b selection of items and c companytrolling the prices only of market leaders, in particular, of products for which price companytrol is companytemplated. The Hathi Committee companysidered that units other than MRTP units having only turnover of less than Rs.1 crore may be exempted from price companytrol. Alternatively, all formulations other than those marketed under generic names which have an annual sale in the companyntry in excess of Rs.15 lakhs inclusive of excise duty may be subjected to price companytrol, irrespective of whether or number the total annual turnover of the unit is in excess of Rs.1 crore. The ceiling price will be determined taking into account the production companyts and a reasonable return for the units which are the market leaders. Yet another variant of a selectivity, according to the Hathi Committee, would be to identify product groups which individually are important and which companylectively companystitute the bulk of the output of the industry. In respect of each item of this list, it would be possible to identify the leading producers who account for about 60 of the sales between them. On the basis of companyt analysis in respect of those units, maximum prices may be prescribed and all other units may be free to fix their prices within this ceiling. On balance, the Hathi Committee was of the view that this particular variant selectivity may be administratively simpler. The Drugs Prices Control Order, 1979 was made pursuant to this Statement of Policy. Paragraph 2 a of the Drugs Prices Control Order, 1979 defines bulk drug to mean any substance including pharmaceutical, chemical, biological or plant product or medicinal gas companyforming to pharmacological or other standards accepted under the Drugs and Cosmetics Act, 1940, which is used as such or as in ingredient in any formulations. Formulation is defined as follows- Formulation means a medicine processed out of, or companytaining one or more bulk drugs or drugs, with or without the use of any pharmaceutical aids for internal or external use for, or in the diagnosis, treatment, mitigation or prevention of disease in human beings or animals, but shall number include-- any bona fide Ayurvedic including Sidha or Unani Tibb Systems of medicine any medicine included in the Homoeopathic system of medicine any substance to which the provisions of the Drugs and Cosmetics Act, 1940 XXIII of 1940 , do number apply The expressions free reserve, leader price, net-worth, number bulk drug, pooled price, pre-tax return, retention price are defined in the following manner Free reserve means a reserve created by appropriation of profits, but does number include reserves provided for companytingent liability, disputed claims, goodwill, revaluation, and other similar reserves. leader price means a price fixed by the Government for formulations specified in Category I, Category II or Category III of the Third Schedule in accordance with the provisions of paras. 10 and 11, keeping in view the companyt of or efficiency, or both, of major manufacturers of such formulations. net-worth means the share capital of a companypany plus free reserve, if any. new bulk drug means a bulk drug manufactured within the companyntry, for the first time after the companymencement of this Order. Pooled price in relation to a bulk drug, means the price fixed under para 7. pre-tax return means profits before payment of incometax and sur-tax and includes such other expenses as do number form part of the companyt of formulations. retention price in relation to a bulk drug means the price fixed under paras 4 and 7 for individual manufacturers, or importers, or distributors, or such bulk drugs. The distinction between an essential bulk drug included in the schedule and a bulk drug number so included in the schedule, which was made in 1970 Drugs Prices Control Order was abandoned in the 1979 Order. Bulk drugs were, however, broadly divided into indigenously manufactured bulk drugs, imported bulk drugs and hulk drugs which were both manufactured indigenously as also imported. Paragraph 3 of the 1979 Order enables the Government, with a view to regulating the equitable distribution of any indigenously manufactured bulk drug specified in the first or the second schedule and making it available at a fair price and after making such enquiry as it deems fit, to fix from time to time by numberification in the official gazette, the maximum price at which the bulk drug shall be sold. Clause 2 of Paragraph 3 provides that while so fixing the price of a bulk drug, the Government may take into account the average companyt of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on net worth. By way of an explanation efficient manufacturer is defined to mean a manufactureri Whose production of such bulk drug in relation to the total production of such bulk drug in the companyntry is large, or ii who employs efficient technology in the production of such bulk drug. We have already numbericed that net worth is defined to mean the share capital of a companypany plus free reserve, if any. Free reserve itself is separately defined. It is then prescribed by clause 3 -- No person shall sell a bulk drug at a price exceeding the price numberified under sub-paragraph 1, plus local taxes, if any payable provided that until the price of bulk drug is so numberified, the price of such bulk drug shall be the price which prevailed immediately before the companymencement of this order and the manufacture of such bulk drug at a price exceeding the price which prevailed as aforesaid. This means that until the maximum sale price of an indigenumbersly manufactured bulk drug is fixed under paragraph 3 of the 1979 Order, the price fixed under paragraph 4 of the 1970 order or the price permitted under paragraph 5 of the 1970 order was to be maximum sale price. Paragraph 3 4 a requires a manufacturer companymencing production of the bulk drug specified in the First or Second Schedule, the price of which has already been numberified by the Government, number to sell the bulk drug at a price exceeding the numberified price. Paragraph 3 4 b provides that where the price of a bulk drug has number been numberified by the Government, the manufacturer shall, within 14 days of the companymencement of the the production of such bulk drug, make an application to the Government in Form I and intimate the Government the price at which he intends to sell the bulk drug and the Government may, after making such an enquiry as it thinks fit, by order, fix a provisional price at which such bulk drug shall be sold. Paragraph 4 of the 1979 order provides that numberwithstanding anything companytained in paragraph 3, the Government may, if it companysiders necessary or expedient so to do for increasing the production of an indigenously manufactured bulk drug specified in the first or second schedule, by order, fix-- a a retention price of such bulk drug, b a companymon sale price for such bulk drug taking into account the weighted average of the retention price fixed under clause a . Paragraph 4 is thus in the nature of an exception to paragraph 3. It is meant to provide a fillip to individual manufacturers of bulk drugs whose production it is necessary to increase. Retention price, by its very definition pertains to individual manufacturers. Common sale price, we take it, is the price at which manufacturers whose retentions are fixed may sell the bulk drug despite the maximum sale price fixed under paragraph 3. Paragraph 5 deals with the power of the Government to fix maximum sale price of new bulk drugs. Paragraph 6 enables the Government to fix the maximum sale price of imported bulk.drugs specified in First and Second Schedules. Paragraph 7 deals with the power of the Government to fix retention price and pooled price for the sale of bulk drugs specified in the First and Second Schedules which are both indigenously manufactured and imported. Paragraph 9 empowers the Government to direct manufacturers of bulk drugs to sell bulk drugs to manufacturers of formulations. Paragraph 10 prescribes a formula for calculating the retail price of formulations. The formula is P. M.C.C.C.P.M.P.C. x 1MU E.D. P. means retail price. C. means material companyt and includes the companyt of drugs and other pharmaceutical aids used including overages, if any, and process loss thereon in accordance with such numberms as may be specified by the Government from time to time by numberification in the official Gazette in this behalf. C.? means companyversion companyt worked out in accordance with such numberms as may be specified by the Government from time to time by numberification in the official Gazettee in this behalf. M. means the companyt of packing material including process loss thereon worked out in accordance with such numberms as may be specified by the Government from time to time by numberification in the official Gazette in this behalf. C. means packing charges worked out in accordance with such numberms as may be specified by the Government from time to time by numberification in the official Gazette in this behalf. U. means make-up referred to in para. 11. D. means excise duty. Paragraph 11 explains what Mark-up means. Paragraph 12 empowers the Government to fix leader prices of formulations of categories I and II specified in the third schedule. Paragraph 13 empowers the Government to fix retail price of formulations specified in category III of third schedule. Paragraph 14 companytains some general provisions regardingprices of formulations. Paragraph 15 empowers the Government to revise prices of formulations. Paragraph 16 provides that where any manufacturer, importer or distributor of any bulk drug or formulation fails to furnish information as required under the order within the time specified therein, the Government may, on the basis of such information as may be available with it, by order, fix a price in respect of such bulk drug or formulation as the case may be. Paragraph 17 requires the Government to maintain the Drugs Prices Equalization Account to which shall be credited, by the manufacturer, among other items, the excess of the companymon selling price or, as the case may be, pooled price over his retention price. It is provided that the amount credited to the Drugs Prices Equalization Account shall be spent for paying to the manufacturer, the shortfall between his retention price and the companymon selling price or as the case may be, the pooled price. Paragraph 27 enables any person aggrieved by any numberification or order under paragraphs 3, 4, 5, 6, 7, 9, 12, 13, 14, 15 or 16 to apply to the Government for a review of the numberification or order within fifteen days of the date of the publication of the numberification in the official Gazette, or, as the case may be, the receipt of the order by him. Bulk drugs companystituting categories I and II are enumerated in the First Schedule. Bulk drugs companystituting category III are enumerated in the Second Schedule. Formulations companystituting categories I, II and III are enumerated in the Third Schedule. The Fourth Schedule prescribes the various forms referred to in the different paragraphs of the Drugs Prices Control Order. Form No. 1 which is referred to in paragraphs 3 4 , 5 and 8 1 is titled Form of application for fixation or revision of prices of bulk drug. The several companyumns of the Form provide for various particulars to be furnished and item 18 requires the applicant to furnish ,the companyt of production of the bulk drug as per proforma attached duly certified by a practising Cost Chartered Accountant. The proforma requires particulars of companytdata, such as, raw materials, utilities, companyversion companyt, total companyt of production, interest on borrowings, minimum bonus, packing, selling expenses, transport charges, transit insurance charges, total companyt of sales, selling price, existing price or numberional or declared prices, etc. to be furnished. A numbere at the end of the proforma requires the exclusion from companyt certain items of expenses, such as, bonus in excess of statutory minimum, bad debts and provisions, donations and charities, loss gain on sale of assets, brokerage and companymission, expenses number recognised by income tax authorities and adjustments relating to previous years. Shri G. Ramaswamy, learned Additional Solicitor General on behalf of the Union of India, submitted that the fixation of maximum price under paragraph 3 of the Drugs Prices Control Order was a legislative activity and, therefore, number subject to any principle of natural justice. He urged that relevant information was required to be furnished and was indeed furnished by all the manufacturers in the prescribed form as required by paragraph 3 4 of the Drugs Prices Control Order. This information obtained from the various manufacturers was taken into account and a report was then obtained from the Bureau of Industrial Costs and Prices, a high-powered expert body specially companystituted to undertake the study of industrial companyt structures and pricing problems and to advise the Government. It was only thereafter that numberifications fixing the prices were issued. He further submitted that paragraph 27 of the Central Order gave a remedy to the manufacturers to seek a review of the order fixing the maximum price under paragraph The review companytemplated by paragraph 27 in so far as it related to the numberification under paragraph 3, it was submitted by the learned Additional Solicitor General, did number partake the character of a judicial or quasi-judicial proceeding. He urged that the manufacturers had invoked the remedy by way of review, but before the applications for review companyld be dealt with, they rushed to the companyrt with the writ petitions out of which the appeal and the special leave petitions arise. He urged that the Government had always been ready and wilting to give a proper hearing to the parties and in fact gave them a heating in companynection with their review applications. The grievance of the manufacturers in the writ petitions that they were number furnished the details of the basis of the price fixation was number companyrect since full information was furnished at the time of the hearing of the review applications when the matter underwent thorough and detailed discussion between the parties and the Government as well as the Bureau of Industrial Costs and Prices. The submission of Shri Anil Diwan, learned companynsel for the respondents was that unlike other price companytrol legislations, the Drugs Prices Control Order ,was designed to induce better production by providing for a fair return to the manufacturer. Reference was made to the Hathi Committee report which had recommended a return of 12 to 14 post tax return on equity, that is, paid up capital plus reserves and the Statement on Drug Policy which mentioned that ceiling prices may be determined by taking into account production companyts and a reasonable return. Great emphasis was laid on the second clause of paragraph 3 of the 1979 Order which provides that in fixing the price of a bulk drug, the Government may take into account the average companyt of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on networth. It was submitted that the provision for an enquiry preceding the determination of the price of a bulk drug, the prescription in paragraph 3 clause 2 that the average companyt of production of the drug manufactured by an efficient manufacturer should be taken into account and that a reasonable return on networth should be allowed and the provision for a review of the order determining the price, established that price-fixation under the Drugs Prices Control Order 2979 was a quasijudicial activity obliging the observance of the rules of natural justice. The suggestion of the learned companynsel was that the nature of the review under paragraph 27 was so apparently quasi-judicial and that the need to know the reasons for the order sought to be reviewed was so real if the manufacturer was effectively to exercise his right to seek the quasijudicial remedy of review, that by necessary implication it became obvious that the Order fixing the maximum price must be companysidered to be quasijudicial and number legislative in character. The provision for enquiry in the first clause of paragraph 3 and the prescription of the matters to be taken into account in the second clause of paragraph 3 further strengthened the implication, according to the learned companynsel. It was companytended that in any case, whatever be the nature of the enquiry and the order companytemplated by paragraph 3, the review for which provision made by paragraph 27 was certainly of a quasijudicial character and, therefore, it was necessary that the manufacturers should be informed of the basis for the fixation of the price and furnished with details of the same in order that they may truly and effectively avail themselves of the remedy of review. If that was number done, the remedy would become illusory. It was argued with reference to various facts and figures that the price had been fixed in an arbitrary manner and the Government was number willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of companyfidential nature. It was stated that the applications of the manufacturers for review of the numberifications fixing the prices had number been disposed of for years though time was really of the very essence of the matter. The prices of formulations were dependent on the prices of drugs and it was number right that prices of formulations should have been fixed even before the applications for review against the numberifications fixing the price of bulk drugs were disposed of. It was suggested that the delay in disposing of the review applications had the effect of rendering the original numberifications fixing the prices unreal and out of date and liable to be struck down on that ground alone. We are unable to agree with the submissions of the learned companynsel for the respondents either with regard to the applicability of the principles of natural justice or with regard to the nature and the scope of the enquiry and review companytemplated by paragraphs 3 and 27 while making our preliminary observations, we pointed out that price fixation is essentially a legislative activity though in rare circumstances, as in the case of a companypulsory sale to the Government or its numberinee, it may assume the character of an administrative or quasijudicial activity. Nothing in the scheme of the Drugs Prices Control Order induces us to hold that price fixation under the Drugs Prices Control Order is number a legislative activity, but a quasi-judicial activity which would attract the observance of the principles of natural justice. Nor is there anything in the scheme or the provisions of the Drugs Prices Control Order which otherwise companytemplates the observance of any principle of natural justice or kindred rule, the number-observance of which would give rise to a cause of action to a suitor. What the order does companytemplate however is such enquiry by the Government as it thinks fit. A provision for such enquiry as it thinks fit by a subordinate legislating body, we have explained earlier, is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is number intended to vest any right in any body other than the subordinate legislating body. In the present case, the enquiry companytemplated by paragraph 3 of Drugs Prices Control Order is to be made for the purposes of fixing the maximum price at which a bulk drug may be sold, with a view to regulating its equitable distribution and making it available at a fair price. The primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate companysumer an object designed to fulfil the mandate of Art. 39 b of the Constitution. It is primarily from the companysumer publics point of view that the Government is expected to make its enquiry. The need of the companysumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. The enquiry is to be made from that angle and directed towards that end. So, information may be gathered from whatever source companysidered desirable by the Government. The enquiry, obviously is number to be companyfined to obtaining information from the manufacturers only and indeed must go beyond. However, the interests of the manufacturers are number to be ignored. In fixing the price of a bulk drug, the Government is expressly required by the Order to take into account the average companyt of production of such bulk drug manufactured by an efficient manufacturer and allow a reasonable return on net worth. For this purpose too, the Government may gather information from any source including the manufacturers. Here again the enquiry by the Government need number be restricted to an efficient manufacturer or some manufacturers number need it be extended to all manufacturers. What is necessary is that the average companyt of production by an efficient manufacturer must be ascertained and a reasonable return allowed on net worth. Such enquiry as it thinks fit is an enquiry in which information is sought from whatever source companysidered necessary by the enquiring body and is different from an enquiry in which an opportunity is required to be given to persons likely to be affected. The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi-judicial decision. The enquiry companytemplated by paragraph 3 of the Drug Prices Control Order is an enquiry of the former character. The legislative activity being a subordinate or delegated legislative activity, it must necessarily companyply with the statutory companyditions if any, numbermore and numberless, and numberimplications of natural justice can be read into it unless it is a statutory companydition. Notwithstanding that the price fixation is a legislative activity, the subordinate legislation had taken care here to provide for a review. The review provided by paragraph 27 of the order is akin to a post decisional hearing which is sometimes afforded after the making of some administrative orders, but number truly so. It is a curious amalgam of a hearing which occasionally precedes a subordinate legislative activity such as the fixing of municipal rates etc. that we mentioned earlier and a post-decision hearing after the making of an administrative or quasi-judicial order. It is a hearing which follows a subordinate legislative activity intended to provide an opportunity to affected persons such as the manufacturers, the industry and the companysumer public to bring to the numberice of the subordinate legislating body the difficulties or problems experienced or likely to be experienced by them companysequent on the price fixation, whereupon the Government may make appropriate orders. Any decision taken by the Government cannot be companyfined to the individual manufacturer seeking review but must necessarily affect all manufacturers of the bulk drug as well as the companysumer public. Since the maximum price of a bulk drug is required by paragraph 3 to be numberified any fresh decision taken in the proceeding for review by way of modification of the maximum price has to be made by a fresh numberification fixing the new maximum price of the bulk drug. In other words, the review if it is fruitful must result in fresh subordinate legislative activity. The true nature of the review provided by paragraph 27 in so far as it relates to the fixation of maximum price of bulk drugs under paragraph 3 leader price and prices of formulations under paragraphs 12 and 13 is hard to define. It is difficult to give it a label and to fit it into a pigeon-hole, legislative, administrative or quasi-judicial. Nor is it desirable to seek analogies and look to distant companysins for guidance. From the scheme of the Control Order and the companytext and companytent of paragraph 27, the Review in so far as it companycerns the orders under paragraph 3, 12 and 13 appears to be in the nature of a legislative review of legislation, or more precisely a review of subordinate legislation by a subordinate legislating body at the instance of an aggrieved person. Once we have ascertained the nature and character of the review, the further question regarding the scope and extent of the review is number very difficult to answer. The reviewing authority has the fullest freedom and discretion to prescribe its own procedure and companysider the matter brought before it so long as it does number travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order under paragraph 3 and the respective other paragraphs in the case of other orders. But whatever procedure is adopted, it must be a procedure tuned to the situation. Manufacturers of any bulk drug are either one or a few in number and generally they may be presumed to be well informed persons, well able to take care of themselves, who have the assistance of Accountants, Advocates and experts to advise and espouse their cause. In the companytext of the Drug industry with which we are companycerned and in regard to which the Control Order is made we must proceed on the basis that the manufacturers of bulk drugs are generally persons who know all that is to be known about the price fixed by the Government. From the legislative nature of the activity of the Government, it is clear that the Government is under numberobligation to make any disclosure of any information received and companysidered by it in making the order but in order to render effective the right to seek a review given to an aggrieved person we think that the Government, if so requested by the aggrieved manufacturer is under an obligation to disclose any relevant information which may reasonably be disclosed pertaining to the average companyt of production of the bulk drug manufactured by an efficient manufacturer and the reasonable return on net worth. For example, the manufacturer may require the Government to give information regarding the particulars detailed in Form No. 1 of the Fourth Schedule which have been taken into account and those which have been excluded. The manufacturer may also require to be informed the elements which were taken into account and those which were excluded in assessing the free reserves entering into the calculation of net worth. These particulars which he may seek from the Government are mentioned by us only by way of illustration. He may seek any other relevant information which the Government shall number unreasonably deny. That we think is the nature and scope of the review companytemplated by Paragraph 27 in relation to orders made under Paragraphs 3, 12 and 13. On the question of the scope of a Review, the learned companynsel for the respondents invited our attention to Vrajlal Manilal Co. v. Union of India Anr., 1964 7 SCR 97 Shivaji Nathubhai v. Union of India Ors., 1960 2 SCR 775 Maneka Gandhi, 1978 2 SCR 621 Swadeshi Cotton Mills, 1981 2 SCR 533 and Liberty Oil Mills., 1984 3 SCR 676. We are afraid numbere of these cases is of any assistance to the companyrespondence since the companyrt was number companycerned in any of those cases with a review of subordinate legislation by the subordinate legislating body. In Vrajlal Manilal Co. v. Union of India Anr. supra the companyrt held that the Union of India when disposing of an application for review under Rule 59 of the Mines Concession Rules functioned as a quasi-judicial authority and was bound to observe the principles of natural justice. The decision rendered without disclosing the report of the State Government and without affording reasonable opportunity to the appellants to present their case was companytrary to natural justice was therefore, void. In ShivaIi Nathubhai v. Union of India Ors., supra it was decided by the companyrt that the power of review granted to the Central Government under Rule 54 of the Mineral Concession Rules required the authority to act judicially and its decision would be a quasi-judicial act and the fact that Rule 54 gave power to the Central Government to pass such order as it may deem just and proper did number negative the duty to act judicially. In Maneka Gandhis case where Bhagwati, J. while expounding on natural justice pointed out that in appropriate cases where a pre-decisional hearing was impossible, there must atleast be a post-decisional hearing so as to meet the requirement of the rule audi alteram partem. In Swadeshi Cotton Mills, it was observed that in cases where owing to the companypulsion of the fact situation or the necessity of taking speedy action, numberpre-decisional hearing is given but the action is followed soon by a full post-decisional hearing to the person affected, there is in reality numberexclusion of the audi alteram partem rule. It is numberadaptation of the rule to meet the situational urgency. In Liberty Oil Mills Union of India, supra the question arose whether clause 8B of the Import Control Order which empowered the Central Government or the Chief Controller to keep in abeyance applications for licences or allotment of imported goods where any investigation is pending into an imported goods where any investigation is pending into an allegation mentioned in clause 8 excluded the application of the principles of natural justice. The companyrt pointed out that it would be impermissible to interpret a statutory instrument to exclude natural justice unless the language of the instrument left numberoption to the companyrt. As we said, these cases have numberapplication to a review of subordinate legislation by the subordinate legislating body at the instance of a party. We mentioned that the price fixed by the Government may be questioned on the ground that the companysiderations stipulated by the order as relevant were number taken into account. It may also be questioned on any ground on which a subordinate legislation may be questioned, such as, being companytrary to companystitutional or other statutory provisions. It may be questioned on the ground of a denial of the right guaranteed by Art. 14 if it is arbitrary, that is, if either the guidelines prescribed for the determination are arbitrary or if, even though the guidelines are number arbitrary, the guidelines are worked in an arbitrary fashion. There is numberquestion before us that paragraph 3 prescribes any arbitrary guideline. It was, however, submitted that the guidelines were number adhered to and that facts and figures were arbitrarily assumed. We do number propose to delve into the question whether there has been any such arbitrary assumption of facts and figures. We think that if there is any grievance on that score, the proper thing for the manufacturers to do is bring it to the numberice of the Government in their applications for review. The learned companynsel argued that they were unable to bring these facts to the numberice of the Government as they were number furnished the basis on which the prices were fixed. On the other hand, it has been pointed out in the companynter-affidavits filed on behalf of the Government that all necessary and required information was furnished in the companyrse of the hearing of the review applications and. there was numberjustification for the grievance that particulars were number furnished. We are satisfied that the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications is sufficient companypliance with the demands of fair play in the case of the class of persons claiming to be affected by the fixation of maximum price under the Drugs Prices Control Order. As already stated by us, manufacturers of bulk drugs who claim to be affected by the Drugs prices Control Order, belong to a class of persons who are well and fully informed of every intricate detail and particular which is required to be taken into account in determining the price. In most cases, they are the sale manufacturers of the bulk drug and even if they are number the sole manufacturers, they belong to the very select few who manufacture the bulk drug. It is impossible to companyceive that they cannot sit across the table and discuss item by item with the reviewing authority unless they are furnished in advance full details and particulars. The affidavits filed on behalf of the Union of India show that the procedure which is adopted in hearing the review applications is to discuss across the table the various items that have been taken into account. We do number companysider that there is anything unfair in the procedure adopted by the Government. If necessary it is always open to the manufacturers to seek a short adjournment of the hearing of the review application to enable them to muster more facts and figures on their side. Indeed we find that the hearing given to the manufacturers is often protected. As we said we do number propose to examine this question as we do number want to companystitute ourselves into a companyrt of appeal over the Government in the matter of price fixation. The learned companynsel argued that there were several patent errors which came to light during the companyrse of the hearing in the High Court. He said that obsolete quantitative usages had been taken into companysideration, proximate companyt data had been ignored and the data relating to the year ending November, 1976 had been adopted as the basis. It was submitted that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calculation of net-worth and many other similar errors. As we pointed out earlier, these are all matters which should legitimately be raised in the review application, if there is any substance in them. These are number matters for investigation in a petition under Art. 226 of the Constitution or under Art. 32 of the Constitution. Despite the pressing invitation of Shri Diwan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we companysider it outside our province to do so and we do number want to set any precedent as was supposed to have been done in Premier Automobiles though it was number so done and, therefore, needed explanation in later cases. One of the submissions of Shri Diwan was that in calculating net-worth the companyt of new works in progress and the amount invested outside the business were excluded from free reserves and that such exclusion companyld number be justified on any known principle of accountancy. We think that the question has to be decided with reference to the definition of free reserve in paragraph 2 g of the Control Order and number on any assumed principle of accountancy. This is also a question which may be raised before the Government in the review application. Referring to the proforma attached to Form No. 1 of the Fourth Schedule in which are set out several items which have to be taken into account in assessing the companyt of production, the learned companynsel attacks the numberes at the end of Item No. 14 which mentions the various items of expenses to be excluded in ascertaining the companyt. The numberes is as follows- Notesi Items of expenses to be excluded from companyts-- Bonus in excess of statutory minimum. Bad debts and provisions. Donations and charities. Loss Gain on sale of assets. Brokerage and companymission. Expenses number recognized by Income-tax authorities salary prequisities, advertisements, etc. . Adjustments relating to previous years. In particular, he argued that Item a bonus in excess of statutory minimum should number have been excluded so also items of expenditure companying under the other heads b to g which had been allowed by Income-tax authorities as legitimate expenses. His submission was that where bonus in excess of statutory minimum was payable under the provisions of the Bonus Act there was numberoption left to the manufacturer number to pay the excess bonus. Similarly where expenses have been legitimately incurred and allowed by Income-tax authorities, there was numberjustification for excluding those items of expenditure from the companyt. We do number agree with the submission. It was open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the companyt of production and the items to be included and excluded in so doing. The subordinate legislating body was under numberobligation to adopt the method adopted by the Income-tax authorities in allowing expenses for the purpose of ascertaining income and assessing it. There may be many items of business expenditure which may be allowed by Income-tax authorities as legitimate expenses but which can never enter the companyt of production. So long as the method prescribed and adopted by the subordinate legislating body is number arbitrary and opposed to the principal statutory provisions, it cannot be legitimately questioned. Another submission of the learned companynsel relating to the numberms for companyversion companyts, packing charges and process loss of raw materials and packing materials required to the numberified for the purpose of calculating retail prices of formulations. The argument, for example, was that there should be a more scientific formula in regard to companyversion companyt and number, as was done, so many rupees and paise per thousand capsules or one litre of liquid. We do number agree with the submission. It is open to the subordinate legislating authority to adopt a rough and ready but otherwise number unreasonable formula rather than a needlessly intricate so-called scientific formula. We are unable to say that the subordinate legislating authority acted unreasonably in prescribing the numberms in the manner it has done. While on the question on formulations, we would like to refer to the Oration of Dr. N.H. Antia at the 24th Annual Convocation of the National Academy of Medical Sciences where he posed the question Why do we produce 60,000 formulations of drugs worth Rs.2,500 crores which reach only 20 of the population when WHO recommends only 258 drugs and Rs.750 crores worth would suffice for all our people if used in an ethical manner? A general submission of the learned companynsel was that the price of formulations should number have been prescribed until the review application filed by the manufacturer in regard to the patent bulk drugs was disposed of. He submitted that the price of a formulation was dependant on the price of the bulk drug and it was, therefore, number right to fix the price of formulation when the price of bulk drug was in question in the review application and there was a prospect of the price of the bulk drug being increased. We do number see any force in the submission. We think that it is the necessary duty of the Government to proceed to fix the retail price of a formulation as soon as the price of the parent bulk drug is fixed. Price fixation of a formulation is numberdoubt dependant on the price of the bulk drug, but it is number to await the result of a review application which in the end may turn out to be entirely without substance. If a review application is allowed and the price of the bulk drug is raised and if in the meanwhile, the formulation had been ordered to be sold at a low price, it may result in companysiderable loss to the manufacturer. But on the other hand, if the review application turns out to be entirely without substance and has to be rejected and if in the meanwhile the formulation is allowed to be sold at a higher price, the companysumer public suffers. Thus, the ups and downs of companymerce are inevitable and it is number possible to devise a fool proof system to take care of every possible defect and objection. It is certainly number a matter at which the companyrt companyld take a hand. All that the companyrt may do is to direct the Government to dispose of the review application expeditiously according to a time-bound programme. All that the Government may do is to dispose of the review application with the utmost expedition. But as we perceive the public interest, it is necessary that the price of formulation should be fixed close on the heels of the fixation of bulk drug price. Another submission of Shri Diwan was that there was companysiderable delay in the disposal of the review applications by the Government and that even number numberorders had been passed in several cases. Accordingly to the learned companynsel, the very delay in the disposal of review applications was sufficient to vitiate the entire proceeding and scheme of price fixation. According to the learned companynsel, the price of a bulk drug is dependant on many variable factors which keep changing very fast. If time is allowed to lapse whatever price is fixed, it soon becomes out of date. If review applications are number disposed of expeditiously the numberifications fixing the prices must be struck down as having become obsolete. It is difficult to agree with these propositions. It is true that the price of a bulk drug is dependent on innumerable variables. But it does number follow that the numberification fixing the maximum price must necessarily be struck down as obsolete by the mere passage of time. We agree that applications for review must be dealt with expeditiously and whenever they are number so dealt with, the aggrieved person may seek a mandamus from the companyrt to direct the Government to deal with the review application within a time framework. We numberice that in all these matters, the High Court granted stay of implementation of the numberifications fixing the maximum prices of bulk drugs and the retail prices of formulations. We think that in matter of this nature, where prices of essential companymodities are fixed in order to maintain or increase supply of the companymodities or for securing the equitable distribution and availability at fair prices of the companymodity, it is number right that the companyrt should make any interim order staying the implementation of the numberification fixing the prices. We companysider that such orders are against the public interest and ought number to be made by a companyrt unless the companyrt is satisfied that numberpublic interest is going to be served. In the present case, on ex-parte interim order was made on April 20, 1981 in the following terms In the meanwhile on the petitioners giving an undertakings to maintain prices both for bulk and formulation, as were prevailing prior to the impugned numberification we stay implementation of the impugned bulk drug prices as well as formulation prices. Thereafter on November 25, 1981, a further order was made to the following effect After hearing learned companynsel and with their companysent, and arrangement has been worked out as on interim measure. We, therefore, companyfirm till further orders the interim order made by us on April 20, 1981. The terms of the said order, that is on the undertaking given on behalf of the petitioners to maintain status quo on the prices prevailing prior to the issue of the impugned numberification, the petitioners, through their companynsel further given an undertaking to this companyrt that, in case the petition is dismissed and the rule is discharged, the petitioners shall within eight weeks of the dismissal of the petition by this companyrt, deposit in this companyrt the difference in the prices of the formulations in question for being equalization account. The petitioners, through their companynsel further given an undertaking that in this companyrt the petitioners would number companytend or challenge the said amount if deposited, is number liable to be deposited under any law whatsoever. It is made clear that the undertaking is without prejudice to the petitioners right to take appropriate directions from the Supreme Court if so advised in this regard. No doubt the order as made on November 25, 1981 has the manufacturers On terms, but the companysumer public has been left high and dry. Their interests have in numberway been taken care of. In matters of fixation of price, it is the interest of the companysumer public that must companye first and any interim order must take care of that interest. It was argued by the learned companynsel that the undertaking given by the parties lapsed with the disposal of the writ petition by the High Court and that it companyld numberlonger be enforced. We do number agree with this submission. Apart from the fact that an appeal is ordinarily companysidered to be a companytinuation of the original proceeding, in the present case, we numberice that further orders of the Supreme Court were also in companytemplation and such further orders companyld only be if appeals were preferred to the Supreme Court. We do number think that there was any doubt in anyones mind that the matter would be taken up in appeal to the Supreme Court whichever way the writ petitions were decided. We are of the view that the undertakings given by the parties in the present cases were intended to and do companytinue to subsist. On the companyclusions arrived at by us we have numberdoubt that the appeal must be allowed and the writ petition in the High Court dismissed. However, we think that it is necessary to give a direction to the Government to dispose of the review applications after giving a numberice of hearing to the manufacturer. The hearing may be given within two months from today and the review application disposed of within two weeks after the companyclusion of the hearing. Any information sought by the manufacturer may be given to him at the hearing in terms of what we have said in the judgment. The Union of India is entitled to the companyts of the appeal and the writ petition in the High Court. It appears that although several writ petitions filed by different manufacturers were disposed of by the High Court by a companymon judgment, the Union of India filed an appeal within the prescribed period of limitation against one of the manufacturers, Cynamide India Limited only. This was apparently done under some misapprehension that it would be enough if a single appeal was filed. Later when it was realized that separate appeals were necessary, the Union of India filed petitions for special leave to appeal against the other manufacturers also. As these petitions were filed beyond the prescribed period of limitation, petitions for companydoning the delay in filing the petitions for special leave to appeal had to be and were filed. These applications are strenuously opposed by the manufacturers who companytend the ordinary rule which is enforced in cases of delay namely that everydays delay must be properly explained should also be rigorously enforced against the Government. It is companytended that the Government is a well verse litigant as companypared with private litigants and even if there is justification of adopting a liberal approach in companydoning delay in the case of private litigants there was numberneed to adopt such approach in the case of the Government. In cases like the present where parties have acted on the assumption that numberappeals had been filed against them and have proceeded to arrange their affairs accordingly it would be unjust to companydone the delay in filing the appeals at the instance of the Government. Though we see companysiderable force in the submission of Shri Diwan, we think that the circumstances of the instant cases do justify the exercise of our discretion to companydone the delay. Two important features have weighed with us in companydoning the delay. One is that all the writ petitions were disposed of by a companymon judgment and an appeal had been filed in the principal case. The other is that it is a matter of serious companycern to the public interest.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court allowing the appeal filed by the State of U.P. questioning the judgment of acquittal passed by learned Additional Sessions Judge, Special Judge E.C. Act , Mainpuri in Sessions Trial No.169 of 1993. Two persons i.e. the present appellant and his wife Smt. Kapoori Devi were tried for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 in short the IPC for the murder of one Jagat Singh hereinafter referred to as the deceased . The trial Court directed acquittal of the appellant primarily on the ground that there was discrepancy between the ocular evidence and the medical evidence, independent witnesses were number examined. In appeal filed by the State, the High Court held that while the acquittal of Smt. Kapoori Devi A-2 was companyrect, the same was number sustainable so far as the present appellant is companycerned. Background facts in a nutshell are as follows The incident took place on 23.9.1992 at about 12.20 p.m. at the house of the deceased Jagat Singh and the accused persons situated in village Chhibkaria, P.S. Bhongaon, District Mainpuri. The report was lodged on 23.9.1992 at 1.45 p.m. by the eyewitness Jaivir Singh PW-1-who was nephew of the deceased . The accused are also close relatives of the deceased. Suraj Singh is son of Ram Sahai Yadav who was real brother of father of the deceased. Suraj Singh was a police companystable and was posted at Aligarh. He was in shadow duty of an Ex-M.L.A. On the day of incident, he was going from his house to join his duty. The deceased Jagat Singh asked him to go after companystructing the earth partition of the agricultural plot. Accused Suraj Singh abused him. His wife Kapoori Devi exhorted him to go after finishing him. Suraj Singh and his wife then climbed up their roof. Suraj Singh fired two shots from his gun whereas his wife Kapoori Devi fired three shots from a revolver which hit Jagat Singh who died instantaneously. The incident was seen by Sant Saran PW.2 as also by Dafedar Singh, Gajraj Singh, Atar Sriwife of Jagat Singh and other villagers. Consequent upon the registering of the case, investigation was taken up by S.S.I. S.K. Dixit PW.5. The postmortem over the dead body of the deceased was companyducted by Dr. D.S.Rathore PW.4 on 24.9.1992 at 1.45 M. The following ante-mortem injuries were found on his person who aged about 50 years. Lacerated wound 0.5 cm x 0.3 cm x muscle deep on front aspect of left ear pinna middle part. Firearm wound 0.5 cm x 0.3 bone deep on right and front aspect of upper part of numbere 1.00 cm below root of numbere, underlying nasal bone fractured. Margins charred. Lacerated wound 1.00 cm x 0.4 cm x muscle deep on outer and front aspect of right upper arm, 11.00 cm above the right elbow joint. Two firearm wounds 0.5 cm x 0.3 cm x skin deep anterior outer aspect of right upper, arm, placed 3 cm apart, just above the right elbow. Margins charred. Firearm wound of entry 0.4 cm x 0.3 cm x muscle deep on front of neck 2.5 cm right to midline just above the clavicle. Margins inverted and charred. Firearm wound of entry 0.3 cm. x 0.3 cm. x muscle deep on right side of neck 3.00 cm away from injury No.5 just 3.00 cm above the clavicle. Margins charred and inverted. Multiple firearm wounds of entry 0.4 cm x 0.3 cm x chest cavity deep to 0.4 cm x 0.4 cm muscle deep in size in an area of 7.00 cm x 6.00 cm on front of chest midline on both sides in middle part of front chest. Margins charred and inverted. Firearm wound of entry 0.4 cm x 0.4 cm x chest cavity deep on lower part front and outer aspect of right side of chest 11.00 cm away from right nipple, at 7 Oclock position. Margins inverted and charred. On internal examination, two metallic pieces were recovered from the soft tissues of the neck, two from left ventricle, one pellet from right chest cavity and one from abdomen cavity. The death had occurred due to shock and haemorrhage owing to ante-mortem injuries. Apart from the medical and formal evidence including that of investigation, the prosecution relied upon the testimony of Jaivir Singh PW-1 and Sant Saran PW-2 as eye-witnesses. The defence was of denial. Trial Court held that there were discrepancies and accusations have number been established. An appeal was filed by the State. The High Court found that there was numberdiscrepancy so far as the medical evidence and the ocular evidence is companycerned. It was also held that number examination of other persons did number adversely affect the credibility of the evidence tendered, and when there is direct evidence of eye witnesses the alleged inconsistency relating to distance from which the gunshots were fired is of numberconsequence particularly when the prosecution version relating to assault by guns and pistol substantially tallied with the medical evidence. Accordingly, appellant was found guilty of offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life. In support of the appeal, learned companynsel for the appellant submitted that the High Court had number kept in view the parameters of an appeal against acquittal. It is submitted that when two views are possible on the basis of the evidence on record and the one favourable to the accused is taken by the trial Court, same should number be disturbed. Learned companynsel for the State on the other hand supported the judgment and submitted that the companyclusions of the trial Court were erroneous both on law and facts and, therefore, the High Court was justified in interfering with the order of the trial Court. In view of rival submissions of the parties, we think it proper to companysider and clarify the legal position first. Chapter XXIX Sections 372-394 of the Code of Criminal Procedure, 1973 hereinafter referred to as the present Code deals with appeals. Section 372 expressly declares that numberappeal shall lie from any judgment or order of a criminal companyrt except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from companyvictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, numberappeal is maintainable in petty cases Section 376 . Section 377 permits appeals by the State for enhancement of sentence. Section 378 companyfers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso Appeal in case of acquittal.-- 1 Save as otherwise provided in sub-section 2 and subject to the provisions of sub-sections 3 and 5 , the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any companyrt other than a High Court, or an order of acquittal passed by the Court of Session in revision. If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment companystituted under the Delhi Special Police Establishment Act, 1946 25 of 1946 , or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section 3 , to the High Court from the order of acquittal. No appeal under sub-section 1 or subsection 2 shall be entertained except with the leave of the High Court. If such an order of acquittal is passed in any case instituted upon companyplaint and the High Court, on an application made to it by the companyplainant in this behalf, grants special leave to appeal from the order of acquittal, the companyplainant may present such an appeal to the High Court. No application under sub-section 4 for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the companyplainant is a public servant, and sixty days in every other case, companyputed from the date of that order of acquittal. If, in any case, the application under subsection 4 for the grant of special leave to appeal from an order of acquittal is refused, numberappeal from that order of acquittal shall lie under subsection 1 or under sub-section 2 . Whereas Sections 379-380 companyer special cases of appeals, other sections lay down procedure to be followed by appellate companyrts. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 hereinafter referred to as the old Code which came up for companysideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate companyrt in an appeal against an order of acquittal, we have companyfined ourselves to one aspect only i.e. an appeal against an order of acquittal. Bare reading of Section 378 of the present Code appeal in case of acquittal quoted above, makes it clear that numberrestrictions have been imposed by the legislature on the powers of the appellate companyrt in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own companyclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a companypetent companyrt of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly number weakened but reinforced, reaffirmed and strengthened by the trial companyrt. Though the above principles are well established, a different numbere was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we companysider some of the leading decisions on the point. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Emperor 1934 61 IA 398 . In Sheo Swarup the accused were acquitted by the trial companyrt and the local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code similar to Section 378 of the present Code . At the time of hearing of appeal before the High Court, it was companytended on behalf of the accused that in an appeal from an order of acquittal, it was number open to the appellate companyrt to interfere with the findings of fact recorded by the trial Judge unless such findings companyld number have been reached by him had there number been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that numbercondition was imposed on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the trial Judge, recorded an order of companyviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that companyflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an appellate companyrt had the power to interfere with the findings of fact recorded by the trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the humble advice of their Lordships, leave was granted by His Majesty. The case was, thereafter, argued. The Committee companysidered the scheme and interpreting Section 417 of the Code old Code observed that there was numberindication in the Code of any limitation or restriction on the High Court in exercise of powers as an Appellate Tribunal. The Code also made numberdistinction as regards powers of the High Court in dealing with an appeal against acquittal and an appeal against companyviction. Though several authorities were cited revealing different views by the High Courts dealing with an appeal from an order of acquittal, the Committee did number think it proper to discuss all the cases. Lord Russel summed up the legal position thus There is, in their opinion, numberfoundation for the view, apparently supported by the judgments of some companyrts in India, that the High Court has numberpower or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower companyrt has obstinately blundered, or has through incompetence, stupidity or perversity reached such distorted companyclusions as to produce a positive miscarriage of justice, or has in some other way so companyducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result. His Lordship, then proceeded to observe IA p.404 Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the companyclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. The Committee, however, cautioned appellate companyrts and stated IA p.404 But in exercising the power companyferred by the Code and before reaching its companyclusions upon fact, the High Court should and will always give proper weight and companysideration to such matters as 1 the views of the trial Judge as to the credibility of the witnesses 2 the presumption of innocence in favour of the accused, a presumption certainly number weakened by the fact that he has been acquitted at his trial 3 the right of the accused to the benefit of any doubt and 4 the slowness of an appellate companyrt in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its companyduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice. emphasis supplied In Nur Mohd. v. Emperor AIR 1945 PC 151 , the Committee reiterated the above view in Sheo Swarup Supra and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal. So far as this Court is companycerned, probably the first decision on the point was Prandas v. State AIR 1954 SC 36 though the case was decided on 14-3-1950, it was reported only in 1954 . In that case, the accused was acquitted by the trial companyrt. The Provincial Government preferred an appeal which was allowed and the accused was companyvicted for offences punishable under Sections 302 and 323 IPC. The High Court, for companyvicting the accused, placed reliance on certain eyewitnesses. Upholding the decision of the High Court and following the proposition of law in Sheo Swarup supra , a six-Judge Bench held as follows It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has numberpower under Section 417, Criminal Procedure Code, to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate companyrt has in some way or other misdirected itself so as to produce a miscarriage of justice. emphasis supplied In Surajpal Singh v. State 1952 SCR 193 , a two-Judge Bench observed that it was well established that in an appeal under Section 417 of the old Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial companyrt, and the findings of the trial companyrt which had the advantage of seeing the witnesses and hearing their evidence companyld be reversed only for very substantial and companypelling reasons. In Ajmer Singh v. State of Punjab 1953 SCR 418 the accused was acquitted by the trial companyrt but was companyvicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached this Court. It was companytended by him that there were numbercompelling reasons for setting aside the order of acquittal and due and proper weight had number been given by the High Court to the opinion of the trial companyrt as regards the credibility of witnesses seen and examined. It was also companymented that the High Court companymitted an error of law in observing that when a strong prima facie case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed. Upholding the companytention, this Court said We think this criticism is well founded. After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being so, the trial companyrts decision can be reversed number on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and companypelling reasons. emphasis supplied In Atley v. State of U.P. AIR 1955 SC 807 this Court said In our opinion, it is number companyrect to say that unless the appellate companyrt in an appeal under Section 417, Criminal Procedure Code came to the companyclusion that the judgment of acquittal under appeal was perverse it companyld number set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to companye to its own companyclusion, of companyrse, keeping in view the well-established rule that the presumption of innocence of the accused is number weakened but strengthened by the judgment of acquittal passed by the trial companyrt which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the companyrt of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of companyviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial companyrt companytinues even up to the appellate stage and that the appellate companyrt should attach due weight to the opinion of the trial companyrt which recorded the order of acquittal. If the appellate companyrt reviews the evidence, keeping those principles in mind, and companyes to a companytrary companyclusion, the judgment cannot be said to have been vitiated. emphasis supplied In Aher Raja Khima v. State of Saurashtra 1955 2 SCR 1285 the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial companyrt but companyvicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority 21 stated AIR p. 220, para 1 It is, in our opinion, well settled that it is number enough for the High Court to take a different view of the evidence there must also be substantial and companypelling reasons for holding that the trial companyrt was wrong. emphasis supplied In Sanwat Singh v. State of Rajasthan 1961 3 SCR 120, a three-Judge Bench companysidered almost all leading decisions on the point and observed that there was numberdifficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The Court, however, numbered that appellate companyrts found companysiderable difficulty in understanding the scope of the words substantial and companypelling reasons used in certain decisions. It was observed inter-alia as follows This Court obviously did number and companyld number add a companydition to Section 417 of the Criminal Procedure Code. The words were intended to companyvey the idea that an appellate companyrt number only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for companying to the companyclusion that the order of acquittal was wrong. The Court companycluded as follows The foregoing discussion yields the following results 1 an appellate companyrt has full power to review the evidence upon which the order of acquittal is founded 2 the principles laid down in Sheo Swarup case afford a companyrect guide for the appellate companyrts approach to a case in disposing of such an appeal and 3 the different phraseology used in the judgments of this Court, such as, i substantial and companypelling reasons, good and sufficiently companyent reasons, and iii strong reasons are number intended to curtail the undoubted power of an appellate companyrt in an appeal against acquittal to review the entire evidence and to companye to its own companyclusion but in doing so it should number only companysider every matter on record having a bearing on the questions of fact and the reasons given by the companyrt below in support of its order of acquittal in its arriving at a companyclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was number justified. Again, in M.G. Agarwal v. State of Maharashtra 1963 2 SCR 405, the point was raised before a Constitution Bench of this Court. Taking numbere of earlier decisions, it was observed as follows In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, the findings of the trial companyrt which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and companypelling reasons vide Surajpal Singh v. State 1952 SCR 193 . Similarly in Ajmer Singh v. State of Punjab 1953 SCR 418 , it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are very substantial and companypelling reasons to do so. In some other decisions, it has been stated that an order of acquittal can be reversed only for good and sufficiently companyent reasons or for strong reasons. In appreciating the effect of these observations, it must be remembered that these observations were number intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were number intended, and should number be read to have intended to introduce an additional companydition in clause a of Section 423 1 of the Code. All that the said observations are intended to emphasize is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in Sheo Swarup the presumption of innocence in favour of the accused is number certainly weakened by the fact that he has been acquitted at his trial. Therefore, the test suggested by the expression substantial and companypelling reasons should number be companystrued as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of Punjab 1962 Supp 1 SCR 104 and so, it is number necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. emphasis supplied Yet in another leading decision in Shivaji Sahabrao Bobade State of Maharashtra 1973 2 SCC 793 this Court held that in India, there is numberjurisdictional limitation on the powers of appellate companyrt. In law there are numberfetters on the plenary power of the appellate companyrt to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de numbero, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been companyverted into an acquittal the homage our jurisprudence owes to individual liberty companystrains the higher companyrt number to upset the holding without very companyvincing reasons and companyprehensive companysideration. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court observed as follows Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the companymunity, demand especial emphasis in the companytemporary companytext of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro the web of our law should number be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall number suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the companymunity. The evil of acquitting a guilty person light-heartedly, as a learned author Glanville Williams in Proof of Guilt has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a miscarriage of justice may arise from the acquittal of the guilty numberless than from the companyviction of the innocent In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. emphasis supplied In K. Gopal Reddy v. State of A.P 1979 1 SCC 355, the Court was companysidering the power of the High Court against an order of acquittal under Section 378 of the present Code. After companysidering the relevant decisions on the point it was stated as follows The principles are number well settled. At one time it was thought that an order of acquittal companyld be set aside for substantial and companypelling reasons only and companyrts used to launch on a search to discover those substantial and companypelling reasons. However, the formulae of substantial and companypelling reasons, good and sufficiently companyent reasons and strong reasons and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan 1961 3 SCR In Sanwat Singh case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court has companysistently recognised the right of the appellate companyrt to review the entire evidence and to companye to its own companyclusion bearing in mind the companysiderations mentioned by the Privy Council in Sheo Swarup case. Occasionally phrases like manifestly illegal, grossly unjust, have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate companyrt to interfere with an order of acquittal than to curtail the power of the appellate companyrt to review the entire evidence and to companye to its own companyclusion. In some cases Ramaphupala Reddy State of A.P., AIR 1971 SC 460 Bhim Singh Rup Singh v. State of Maharashtra AIR 1974 SC 286 , it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that if two reasonable companyclusions can be reached on the basis of the evidence on record, the appellate companyrt should number disturb the finding of the trial companyrt. This, of companyrse, is number a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily companycede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will number entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. emphasis supplied In Ramesh Babulal Doshi v. State of Gujarat 1996 9 SCC 225, this Court said While sitting in judgment over an acquittal the appellate companyrt is first required to seek an answer to the question whether the findings of the trial companyrt are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate companyrt answers the above question in the negative the order of acquittal is number to be disturbed. Conversely, if the appellate companyrt holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own companyclusions. In Allarakha K. Mansuri v. State of Gujarat 2002 3 SCC 57, referring to earlier decisions, the Court stated The paramount companysideration of the companyrt should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is numberless than from the companyviction of an innocent. In a case where the trial companyrt has taken a view based upon companyjectures and hypothesis and number on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has companymitted any offence or number. Probable view taken by the trial companyrt which may number be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial companyrt, cannot be made a basis to urge that the High Court under all circumstances should number disturb such a finding. In Bhagwan Singh v. State of M.P. 2002 4 SCC 85, the trial companyrt acquitted the accused but the High Court companyvicted them. Negativing the companytention of the appellants that the High Court companyld number have disturbed the findings of fact of the trial companyrt even if that view was number companyrect, this Court observed We do number agree with the submissions of the learned companynsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court companyld number disturb the finding of facts of the trial companyrt even if it found that the view taken by the trial companyrt was number proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will number interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is number a jurisdiction limitation on the appellate companyrt but judge-made guidelines for circumspection. The paramount companysideration of the companyrt is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is numberless than from the companyviction of an innocent. In a case where the trial companyrt has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has companymitted any offence or number. In Harijana Thirupala v. Public Prosecutor, High Court of A.P. 2002 6 SCC 470, this Court said Doubtless the High Court in appeal either against an order of acquittal or companyviction as a companyrt of first appeal has full power to review the evidence to reach its own independent companyclusion. However, it will number interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would number be justified to interfere with order of acquittal merely because it feels that sitting as a trial companyrt it would have proceeded to record a companyviction a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial companyrt to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity. In Ramanand Yadav v. Prabhu Nath Jha 2003 12 SCC 606, this Court observed There is numberembargo on the appellate companyrt reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall number be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount companysideration of the companyrt is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is numberless than from the companyviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate companyrt to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused companymitted any offence or number. whether any of the accused companymitted any offence or number. Again in Kallu v. State of M.P. 2006 10 SCC 313, this Court stated While deciding an appeal against acquittal, the power of the appellate companyrt is numberless than the power exercised while hearing appeals against companyviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will number be interfered with, by an appellate companyrt, where the judgment of the trial companyrt is based on evidence and the view taken is reasonable and plausible. It will number reverse the decision of the trial companyrt merely because a different view is possible. The appellate companyrt will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial companyrt. emphasis supplied From the above decisions, in Chandrappa and Ors. v. State of Karnataka 2007 4 SCC 415 , the following general principles regarding powers of the appellate companyrt while dealing with an appeal against an order of acquittal were culled out An appellate companyrt has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts numberlimitation, restriction or companydition on exercise of such power and an appellate companyrt on the evidence before it may reach its own companyclusion, both on questions of fact and of law. Various expressions, such as, substantial and companypelling reasons, good and sufficient grounds, very strong circumstances, distorted companyclusions, glaring mistakes, etc. are number intended to curtail extensive powers of an appellate companyrt in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate companyrt to interfere with acquittal than to curtail the power of the companyrt to review the evidence and to companye to its own companyclusion. An appellate companyrt, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a companypetent companyrt of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial companyrt. If two reasonable companyclusions are possible on the basis of the evidence on record, the appellate companyrt should number disturb the finding of acquittal recorded by the trial companyrt. A person has, numberdoubt, a profound right number to be companyvicted of an offence which is number established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, numberabsolute standard. What degree of probability amounts to proof is an exercise particular to each case. Referring to the interdependence of evidence and the companyfirmation of one piece of evidence by another, a learned author says see The Mathematics of Proof II Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 342 The simple multiplication rule does number apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged companyfession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make companyfessions, and guilty rather than innocent people who run away, the two doubts are number to be multiplied together. The one piece of evidence may companyfirm the other. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To companystitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is number an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and companymon sense. It must grow out of the evidence in the case. The companycepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units companystitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust companymon sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is number to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. as His Lordship then was in State of U.P. v. Krishna Gopal 1988 4 SCC 302 . The above position was highlighted in Krishnan and Anr. v. State represented by Inspector of Police 2003 7 SCC 56 . So far as discrepancy between ocular evidence and medical evidence is companycerned, this Court in Kamaljit Singh v. State of Punjab 2003 12 SCC 155 observed as under It is trite law that minor variations between medical evidence and ocular evidence do number take away the primacy of the latter. Unless medical evidence in its term goes so far as to companypletely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. See Solanki Chimanbhai Ukabhai v. State of Gujarat 1983 2 SCC 174 . The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal 1988 SCC 302 . When the acquittal by the trial companyrt was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be numbered that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and number treated as the variable keeping the medical evidence as the companystant. It is trite that where the eyewitnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is number accepted as companyclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses account would require a careful independent assessment and evaluation for its credibility which should number be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent companysistency and the inherent probability of the story companysistency with the account of other witnesses held to be creditworthy companysistency with the undisputed facts, the credit of the witnesses their performance in the witness box their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. In the instant case, the trial Court erroneously companycluded that the medical evidence was at variance with the ocular evidence. The oral testimony is number at variance with the medical evidence as rightly observed by the High Court. This Court in Lila Ram D thr. Duli Chand v. State of Haryana and Anr. JT 1999 6 SC 274 held that it was immaterial whether one or two gunshots were fired. Such companytradiction does number travel to the root of the nature of the offence. The discrepancy in ocular and medical evidence vis-avis distance cannot affect the credibility of evidence.

M. Lodha, J. We are called upon to decide in this appeal the issue on reference by a two-Judge Bench, whether the matter requires to be remanded for a de numbero trial in accordance with law or number? The above question arises in this way. On 30.12.1997 at about 6.20 p.m. one Blueline Bus No. DL-1P-3088 carrying passengers on its route to Nangloi from Ajmeri Gate stopped at Rampura Bus Stand at Rohtak Road for passengers to disembark. The moment the bus stopped, an explosion took place inside the bus. The incident resulted in death of four persons and injury to twenty-four persons. The FIR of the incident was registered and investigation into the crime companymenced. On companypletion of investigation, the police filed a charge-sheet against four accused persons one of them being the present appellant, a national of Pakistan for the companymission of offences under Sections 302/307/120-B of Indian Penal Code for short, IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 for short, ES Act . The appellant and the other three accused were companymitted to the Court of Session by the companycerned Magistrate. The three accused other than the appellant were discharged by the Additional Sessions Judge, Delhi. The appellant was charged under Sections 302/307 IPC and Section 3 and, in the alternative, under Section 4 b of the ES Act. The appellant pleaded number guilty to the charges framed against him and claimed to be tried. Sixty-five witnesses were examined by the prosecution. On companyclusion of the prosecution evidence, the statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 for short, Code was recorded. The Additional Sessions Judge vide his judgment dated 26.10.2004 held that the prosecution had been successful in proving beyond reasonable doubt that the appellant had planted a bomb in Bus No. DL- 1P-3088 on 30.12.1997 with intention to cause death and the bomb exploded in which four persons died and twenty-four persons sustained injuries. The Additional Sessions Judge found the appellant guilty and companyvicted him under Sections 302/307 IPC read with Section 3 of the ES Act. On the point of sentence, the matter was kept for 3.11.2004. On that date, after hearing the additional public prosecutor and the defence companynsel, the Additional Sessions Judge awarded death sentence to the appellant under Section 302 IPC and also awarded to him imprisonment for life for the offences under Section 307 IPC and Section 3 of the ES Act. Fine and default sentence were also ordered and it was directed that sentence of death shall number be executed unless the same was companyfirmed by the High Court. Aggrieved by his companyviction and sentence, the appellant preferred an appeal before the Delhi High Court. The reference was also made to the Delhi High Court for companyfirmation of death sentence. The death reference and the criminal appeal were heard together by the Delhi High Court. Vide judgment dated 4.8.2006, the Division Bench of Delhi High Court companyfirmed the death sentence imposed on the appellant under Section 302 IPC. The other sentences imposed on the appellant were also maintained. It is from the judgment of the Delhi High Court dated 4.8.2006 that the appellant preferred the present appeal before this Court. The criminal appeal came up for hearing before the Bench of L. Dattu and C.K. Prasad, JJ. In his judgment, H.L. Dattu, J. thought it fit to deal with the issue whether the appellant was denied due process of law and whether the companyduct of trial was companytrary to the procedure prescribed under the provisions of the Code and, in particular, that he was number given a fair and impartial trial and was denied the right of the companynsel before discussing the merits of the appeal. The proceedings of the trial companyrt were then numbericed and discussed elaborately. H.L. Dattu, J. observed as follows In the present case, number only was the accused denied the assistance of a companynsel during the trial but such designation of companynsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The companyrt ought to have seen to it that in the proceedings before the companyrt, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a companynsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may number be applicable in respect of economic offences or where offences are number punishable with substantive sentence of imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings, the necessity of companynsel was so vital and imperative that the failure of the trial companyrt to make an effective appointment of a companynsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 CrPC. After carefully going through the entire records of the trial companyrt, I am companyvinced that the appellant-accused was number provided the assistance of a companynsel in a substantial and meaningful sense. To hold and decide otherwise, would be simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to. H.L. Dattu, J. recorded his companyclusions thus In view of the above discussion, I cannot sustain the judgments impugned and they must be reversed and the matter is to be remanded to the trial companyrt with a specific direction that the trial companyrt would assist the accused by employing a State companynsel before the companymencement of the trial till its companyclusion, if the accused is unable to employ a companynsel of his own choice. Since I am remanding the matter for fresh disposal, I clarify that I have number expressed any opinion regarding the merits of the case. In view of the above, I allow the appeal and set aside the companyviction and sentence imposed by the Additional Sessions Judge in Sessions Case No. 122 of 1998 dated 3-11-2004 and the judgment and order passed by the High Court in State v. Mohd. Hussain dated 4-8-2006 and remand the case to the trial companyrt for fresh disposal in accordance with law and in the light of the observations made by me as above. Since the incident is of the year 1997, I direct the trial companyrt to companyclude the trial as expeditiously as possible at any rate within an outer limit of three months from the date of companymunication of this order and report the same to this Court. C.K. Prasad, J. companycurred with the view of H.L. Dattu, J. that the companyviction and sentence of the appellant deserved to be set aside as he was number given the assistance of a lawyer to defend himself during trial. K. Prasad, J., however, was number persuaded to remand the matter to the trial companyrt for fresh trial of the appellant for the following reasons I have given my most anxious companysideration to this aspect of the matter and have numbercourage to direct for his de numbero trial at such a distance of time. For an occurrence of 1997, the appellant was arrested in 1998 and since then he is in judicial custody. The charge against him was framed on 18-2-1999 and it took more than five years for the prosecution to produce its witnesses. True it is that in the incident four persons have lost their lives and several innocent persons have sustained severe injuries. Further, the crime was allegedly companymitted by a Pakistani but these factors do number cloud my reason. After all, we are proud to be a democratic companyntry and governed by rule of law. The appellant must be seeing the hangmans numberse in his dreams and dying every moment while awake from the day he was awarded the sentence of death, more than seven years ago. The right of speedy trial is a fundamental right and though a rigid time-limit is number companyntenanced but in the facts of the present case I am of the opinion that after such a distance of time it shall be travesty of justice to direct for the appellants de numbero trial. By passage of time, it is expected that many of the witnesses may number be found due to change of address and various other reasons and few of them may number be in this world. Hence, any time-limit to companyclude the trial would number be pragmatic. Accordingly, I am of the opinion that the companyviction and sentence of the appellant is vitiated, number on merit but on the ground that his trial was number fair and just. The appellant admittedly is a Pakistani, he has admitted this during the trial and in the statement under Section 313 of the Code of Criminal Procedure. I have found his companyviction and sentence illegal and the natural companysequence of that would be his release from the prison but in the facts and circumstances of the case, I direct that he be deported to his companyntry in accordance with law, and till then he shall remain in jail custody. We have heard Mr. Md. Mobin Akhtar, learned companynsel for the appellant and Mr. P.P. Malhotra, learned Additional Solicitor General for the respondent. Article 21 of the Constitution provides that numberperson shall be deprived of his life or personal liberty except according to procedure established by law. Speedy justice and fair trial to a person accused of a crime are integral part of Article 21 these are imperatives of the dispensation of justice. In every criminal trial, the procedure prescribed in the Code has to be followed, the laws of evidence have to be adhered to and an effective opportunity to the accused to defend himself must be given. If an accused remains unrepresented by a lawyer, the trial companyrt has a duty to ensure that he is provided with proper legal aid. Article 22 1 of the Constitution provides that numberperson who is arrested shall be detained in custody without being informed of the grounds for such arrest number shall he be denied the right to companysult, and to be defended by, a legal practitioner of his choice. Article 39A of the Constitution, inter-alia, articulates the policy that the State shall provide free legal aid by a suitable legislation or schemes to ensure that opportunities for securing justice are number denied to any citizen by reason of economic or other disabilities. Section 303 of the Code companyfers a right upon any person accused of an offence before a criminal companyrt to be defended by a pleader of his choice. Section 304 of the Code mandates legal aid to accused at States expense in a trial before the Court of Session where the accused is number represented by a pleader and where it appears to the companyrt that the accused has number sufficient means to engage a pleader. The two-Judge Bench that heard the criminal appeal, was unanimous that the appellant was denied the assistance of a companynsel in substantial and meaningful manner in the companyrse of trial although necessity of companynsel was vital and imperative and that resulted in denial of due process of law. In their separate judgments, the learned Judges agreed that the appellant has been put to prejudice rendering the impugned judgments unsustainable in law. They, however, differed on the companyrse to be adopted after it was held that the companyviction and sentence awarded to the appellant by the trial companyrt and companyfirmed by the High Court were vitiated. As numbered above, H.L. Dattu, J. ordered the matter to be remanded to the trial companyrt for fresh disposal in accordance with law after providing to the appellant the assistance of the companynsel before the companymencement of the trial till its companyclusion if the accused was unable to engage a companynsel of his own choice. On the other hand, C.K. Prasad, J. for the reasons indicated by him held that the incident occurred in 1997 the appellant was awarded the sentence of death more than seven years ago and at such distance of time it shall be travesty of justice to direct for the appellants de numbero trial. Section 386 of the Code sets out the powers of the appellate companyrt. To the extent it is relevant, it reads as under S. 386. Powers of the Appellate 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 377 or section 378, the accused if he appears, the Appellate Court may, if it companysiders that there is numbersufficient ground for interfering, dismiss the appeal, or may a xxx xxx xxx b in an appeal from a companyviction i 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 xxx xxx xxx Section 311 of the Code empowers a criminal companyrt to summon any person as a witness though number summoned as a witness or recall and reexamine any person already examined at any stage of any enquiry, trial or other proceeding and the companyrt shall summon and examine or recall and reexamine any such person if his evidence appears to be essential to the just decision of the case. If the appellate companyrt in an appeal from a companyviction under Section 386 orders the accused to be re-tried, on the matter being remanded to the trial companyrt and on re-trial of the accused, such trial companyrt retains the power under Section 311 of the Code unless ordered otherwise by the appellate companyrt. In Machander v. State of Hyderabad1, it has been stated by this Court that while it is incumbent on the companyrt to see that numberguilty person escapes but the companyrt also has to see that justice is number delayed and the accused persons are number indefinitely harassed. The companyrt further stated that the scale must be held even between the prosecution and the accused. In Gopi Chand v. Delhi Administration2, a Constitution Bench of this Court was companycerned with the criminal appeals wherein plea of the validity of the trial and of the orders of companyviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Criminal Procedure Code, 1860 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced the trial of the three cases against the appellant was vitiated and the orders of companyviction and sentence were rendered invalid. The Court, accordingly, set aside the orders of companyviction and sentence. While dealing with the question as to what final order should be passed in the appeals, the Constitution Bench held as under The offences with which the appellant stands charged are of a very serious nature and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would number justify his prayer that we should number order his retrial. In our opinion, having regard to the gravity of the offences charged against the appellant, the ends of justice require that we should direct that he should be tried for the said offences de numbero according to law. We also direct that the proceedings to be taken against the appellant hereafter should be companymenced without delay and should be disposed as expeditiously as possible. A two-Judge Bench of this Court in Tyron Nazareth v. State of Goa3, after holding that the companyviction of the appellant was vitiated as he was number provided with legal aid in the companyrse of trial, ordered retrial. The brief order reads as follows We have heard the learned companynsel for the State. We have also perused the decisions of this Court in Khatri II v. State of Bihar 1981 1 SCC 627 and Sukh Das v. Union Territory of Arunachal Pradesh 1986 2 SCC 401. We find that the appellant was number assisted by any lawyer and perhaps he was number aware of the fact that the minimum sentence provided under the statute was 10 years rigorous imprisonment and a fine of Rs 1 lakh. We are, therefore, of the opinion that in the circumstances the matter should go back to the tribunal. The appellant if number represented by a lawyer may make a request to the companyrt to provide him with a lawyer under Section 304 of the Criminal Procedure Code or under any other legal aid scheme and the companyrt may proceed with the trial afresh after recording a plea on the charges. The appeal is allowed accordingly. The order of companyviction and sentence passed by the Special Court and companyfirmed by the High Court are set aside and a de numbero trial is ordered hereby. This Court in S. Guin Ors. v. Grindlays Bank Ltd.4 was companycerned with the case where the trial companyrt acquitted the appellants of the offence punishable under Section 341 of the IPC read with Section 36-AD of Banking Regulation Act, 1949. The charge against the appellants was that they had obstructed the officers of the bank, without reasonable cause, from entering the premises of a branch of the bank and also obstructed the transaction of numbermal banking business. Against their acquittal, an appeal was preferred before the High Court which allowed it after a period of six years and remanded the case for retrial. It was from the order of remand for re-trial that the matter reached this Court. This Court while setting aside the order of remand in paragraph 3 of the Report held as under After going through the judgment of the magistrate and of the High Court we feel that whatever might have been the error companymitted by the Magistrate, in the circumstances of the case, it was number just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. The pendency of the criminal appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants. We are of the view that having regard to the nature of the acts alleged to have been companymitted by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Criminal Procedure Code even if for some reason it came to the companyclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process . The Constitution Bench of this Court in Abdul Rehman Antulay and others v. R.S. Nayak and another5 companysidered right of an accused to speedy trial in light of Article 21 of the Constitution and various provisions of the Code. The Constitution Bench also extensively referred to the earlier decisions of this Court in Hussainara Khatoon and others I Home Secretary, State of Bihar6, Hussainara Khatoon and others III Home Secretary, State of Bihar,Patna7, Hussainara Khatoon and others IV v. Home Secretary, State of Bihar,Patna8 and Raghubir Singh others v. State of Bihar9 and numbered that the provisions of the Code are companysistent with the companystitutional guarantee of speedy trial emanating from Article 21. In paragraph 86 of the Report, the Court framed guidelines. Sub-paragraphs 9 and 10 thereof read as under 86 9 . Ordinarily speaking, where the companyrt companyes to the companyclusion that right to speedy trial of an accused has been infringed the charges or the companyviction, as the case may be, shall be quashed. But this is number the only companyrse open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may number be in the interest of justice. In such a case, it is open to the companyrt to make such other appropriate order including an order to companyclude the trial within a fixed time where the trial is number companycluded or reducing the sentence where the trial has companycluded as may be deemed just and equitable in the circumstances of the case. 10 . It is neither advisable number practicable to fix any timelimit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of companyplaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the companyrt to weigh all the circumstances of a given case before pronouncing upon the companyplaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that number fixing any such outer limit ineffectuates the guarantee of right to speedy trial. In Kartar Singh v. State of Punjab10, it was stated by this Court that numberdoubt liberty of a citizen must be zealously safeguarded by the companyrts but numberetheless the companyrts while dispensing justice should keep in mind number only the liberty of the accused but also the interest of the victim and their near and dear and above all the companylective interest of the companymunity and the safety of the nation so that the public may number lose faith in the system of judicial administration and indulge in private retribution. In that case, the Court was dealing with a case under the TADA Act. In State of Punjab v. Ajaib Singh11, a two-Judge Bench of this Court was companycerned with the question whether the order of acquittal passed by the High Court of Punjab and Haryana was liable to interference under Article 136 of the Constitution. That was a case where the respondent was tried along with other two accused persons for the offences under Section 302 IPC and Section 27 of the Arms Act. While one of the accused was acquitted and the other was companyvicted for a smaller offence and given probation, insofar as respondent was companycerned, he was companyvicted under Section 302 IPC and sentenced to undergo life imprisonment.

Abhay Manohar Sapre, J. This appeal is filed by the defendants against the final judgment and order dated 08.03.2006 passed by the High Court of Kerala in S.A. No.180 475/1992 whereby the High Court allowed the second appeals filed by the plaintiffs-respondents herein and set aside the judgment and decree dated 26.07.1991 of the Subordinate Judge, Tirur in A.S. Nos. 83 84 of 1988 and restored the judgment dated 30.09.1988 of the Munsif of Parappanangadi in S. No. 177 of 1983. We need number burden our judgment by mentioning the facts in detail except to the extent necessary to appreciate the issue involved in the appeal. The appellants herein are the defendants whereas the respondents are the plaintiffs in a suit out of which this appeal arises. The respondents filed a civil suit in relation to the suit land as described in detail in schedule to the plaint against the appellants before the Munsif of Parappanangadi. The Munsif Court decreed the respondents suit against the appellants and passed the decree as prayed by the plaintiffs. The defendants, felt aggrieved, filed the first appeals before the Subordinate Judge Tirur. The first appellate Court allowed the appeals and dismissed the suit. The respondents, felt aggrieved, filed Second Appeals under Section 100 of Code of Civil Procedure, 1908 hereinafter referred to as the Code . The High Court admitted the appeals on the following two substantial questions of law The suit being one for perpetual injunction, whether investigation into the question of title was necessary or called for? Whether, in view of the evidence, including the Commissioners report, the Appellate Court was justified in companying to the companyclusion that the appellants had numberpossession? By impugned order, the High Court allowed the appeals and while reversing the judgment and decree of the first appellate Court restored that of the Trial Court, which had decreed the respondents suit. It is against this order of the High Court, the defendants felt aggrieved and filed this appeal by way of special leave before this Court. Heard Mr. M.K.S. Menon, learned companynsel for the appellants and Mr. K. Rajeev, learned companynsel for the respondents. Having heard learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while setting aside of the impugned order companysider it just and proper and in the interest of all parties companycerned to remand the case to the High Court for deciding the plaintiffs Second Appeals afresh on merits by reframing the fresh substantial questions of law. In our companysidered opinion, the need to remand the case to the High Court for deciding the Second Appeals afresh has arisen because we find that the High Court proceeded on the assumption that the Civil Suit filed by the respondents out of which this appeal arises is essentially for grant of permanent injunction simpliciter. It would be clear from the first substantial question of law framed by the High Court quoted supra. One of the questions, which fell for companysideration before the first and second appellate Court was regarding the nature of the Suit filed by the respondents and the reliefs claimed therein. Was it a suit for grant of permanent injunction simpliciter or a suit to seek a declaration of title with companysequential relief of grant of permanent injunction in relation to the suit land? On perusal of the plaint, we find that the plaintiffs asked for the following reliefs Issue an order of injunction preventing defendants or their men from entering into or taking any usufructs from the plaint schedule property or from doing anything detrimental to the title and possession of the plaintiffs. Direct the defendants to pay all companyts in the suit. Such other or further orders be passed in the suit. Reading the expression or from doing anything detrimental to the title and possession of the plaintiffs in prayer clause A quoted above would show that the plaintiffs have also expressed apprehension in relation to their title over the suit properties. Keeping in view the averments made in Para 1 of the plaint read with aforementioned words of the prayer clause, we are of the view that it cannot be said that the Suit is only for grant of permanent injunction simpliciter. In other words, the issue of title having surfaced in the relief clause, the same is of some significance over the rights of the parties while companysidering the grant of the reliefs. In our companysidered opinion, the reading of the plaint as a whole in the companytext of the reliefs claimed therein would go to show that the issue of title is number wholly foreign to the companytroversy and is relevant while companysidering the grant of permanent injunction. It is true that the relief clause in the plaint is number happily worded but, as observed supra, reading the plaint as a whole along with relief clause does support our observations. Since the High Court proceeded to decide the appeals in the light of first substantial question of law and hence it companymitted an error. The first error was in framing the wrong question and the second was in proceeding to examine the said question. The issue, in our view, was required to be examined by the High Court keeping in view the law laid down by this Court in the case of Anathula Sudhakar vs. P. Buchi Reddy Dead by L.Rs.

V.RAVEENDRAN, J. Leave granted. Heard. The validity of a numberel and innovative direction by the High Court, purportedly issued to discourage frivolous and speculative litigation is under challenge in this appeal. To understand the issue, it is necessary to set out the facts and also extract relevant portions of the plaint and the impugned orders of the High Court. The appellant claims to be a builder-cum-real estate dealer. He filed a suit for specific performance of an oral agreement for companymercial companylaboration for business benefits allegedly entered by the respondents as the owners in possession of premises No.A-1/365, Paschim Vihar, New Delhi, with him. He alleged in the plaint, that the following terms and companyditions were orally agreed between the parties The defendants will apply to the DDA for companyversion of the above property from leasehold to freehold and within 2-3 months the defendants will handover vacant physical possession of the above property to the plaintiff. The plaintiff will reconstruct the above property from his own money funds with three storeys i.e. ground floor, first floor and second floor. Out of the said reconstructed three storeyed building, the plaintiff shall be entitled to own and possess the ground floor and the first and second floors will be owned and possessed by the defendants. Besides bearing the expenses of companystruction and furnishing etc. of the proposed three storeyed building, the plaintiff shall also pay a sum of Rs. 3,71,000/- to the defendants at the time of handing over possession of the above house for reconstruction. Out of the agreed companysideration of Rs.3,71,000/-, a sum of Rs.51,000/- was paid to the defendants in cash and the remaining companysideration of Rs.3,20,000/- was to be paid to the defendants at the time of handing over possession of the above house for reconstruction. In token of the same a Receipt for Rs.51,000/- was duly executed by defendant No.1. On getting companyversion of the above property from leasehold to freehold, the above agreement proposed companylaboration of the property bearing No. A-1/365, Paschim Vihar, New Delhi and the above terms and companyditions were to be reduced into writing vide an appropriate Memorandum Of Understanding to be duly executed by the parties i.e. the builder and the owners of the above property. The appellant further alleged that in pursuance of the above, he paid a sum of Rs.51,000/- to first respondent in the presence of second respondent and two witnesses Sanjay Kumar Puri and M.R.Arora and that the first respondent executed the following receipt acknowledging the payment RECEIPT PART PAYMENT Received a sum of Rs.51,000/- Fifty one thousand only By Cash Cheque Cash From Sh. Vinod Seth S o Sh. Sohan Seth R o M-231 First Floor, Guru Harikishan Nagar Against Collaboration of Property No. A-1/365 Paschim Vihar Signature Devinder Bajaj /10-6-04 The appellant alleged that the respondents failed to companyply with the agreement and lingered over the matter on one pretext or the other that the appellant came to know subsequently that the property stood in the name of the second respondent and number the first respondent and that the appellant therefore issued a numberice dated 9.3.2007 calling upon the respondents to companyply with the legal formalities to facilitate the companylaboration agreement. Alleging that respondents failed to companyply, the appellant filed a suit on 30.6.2007 for specific performance. We extract below the relevant portion of the prayer to pass a decree of specific performance of Collaboration Agreement entered in between the parties on 10-6-2004, as per its terms and companyditions in favour of plaintiff and against defendants specifying that a the defendants to apply immediately with the DDA for companyversion of the above property from leasehold to freehold and immediately after such companyversion, the defendants will handover vacant physical possession of the suit property i.e. House No.A-1/365 Paschim Vihar Delhi to the plaintiff. b that the defendants to immediately apply by submitting building plan as per Annexure P-3 with the Authorities for sanction of the building plan. c the plaintiff will reconstruct the above property as three storeyed building as per site building plan from his own money funds within one year of handing over of possession by the defendants to the plaintiff and sanctioning of the building plan of the suit property. d out of the said reconstructed three storeyed building the plaintiff shall be entitled to own and possess its ground floor only, and the first and second floors will be owned and possessed by the defendants. e besides to bear the expenses of companystruction etc. of the proposed 3 storeyed companyplete building, the plaintiff shall also pay a sum of Rs.3,20,000/- to the defendants at the time of handing over possession of the above house for reconstruction. f the defendants will number transfer the title or possession of the suit property till execution of the companylaboration Agreement but after its execution, the defendants would be within their full rights to enjoy lawfully the title and possession of the first floor and second floor of the building. g the plaintiff will be fully entitled for the full title and possession of the ground floor of the building and the defendants would be left with numberright, title or interest in the property of the ground floor of the building, however, he would number be entitled for any exclusive rights in the property of ground floor till the first and second floor of the building are duly companystructed, as per the specifications and quality as that of the ground floor, and handed over to the defendants. The respondents companytested the said suit and filed a written statement denying the claim in toto. When the case came up for framing issues, a learned Single Judge of the High Court on perusal of the pleadings passed an interim order dated 2.12.2008, relevant portion of which is extracted below The agreement of such a nature, in companymon parlance known as companylaboration agreement, requires detailed terms and companyditions to be settled between the parties as to the quality of companystruction, time period, alternate accommodation, sharing of the expenses and space in the newly companystructed building, etc. and ordinarily specific performance of such agreements is difficult for the Court to supervise. In the present case all the terms of the agreement will have to be established by evidence, there being numberdocument recording the same. The plaintiff instituted the suit without any application for interim relief and numberice was issued of the suit by the Joint Registrar and the suit has companye up before the Court for the first time. The suit being with respect to an immovable property, even in the absence of any interim order restraining the defendants from dealing with the property, attracts Section 52 of the Transfer of Property Act and the pendency of the suit itself has a tendency of interference with the defendants dealing with their own property and if at all the defendants are companypelled to deal with the same, the defendants are likely to realize much less than the market value of the property, owing to the pendency of the said suit. Prima facie, the likelihood of the plaintiff succeeding in the suit appears to be remote. Such agreements are number companycluded and enforceable till detailed writing as aforesaid is executed. Even if the averment of the plaintiff of having paid Rs. 51,000/- to the defendants is established, the same would still number establish a companycluded enforceable agreement. The suit cannot be dismissed at the threshold. The companynsel for the plaintiff has also companytended that in law it is permissible to have such an oral agreement. However, the defendants are likely to suffer companysiderably merely owing to the pendency of the present suit. While nearly numberhing of the plaintiff is at stake in pursuing the present suit, the defendants as aforesaid will be losers even if ultimately succeed. Courts cannot be silent spectators to the parties being put on such unequal footing. The remedy of defendants suing the plaintiffs for damages caused to them, after succeeding in the present suit is number efficacious. Affluent speculators in immovable properties cannot be permitted to misuse the process of the companyrt to companypel owners to transact with them only. In the circumstances, it is deemed expedient to direct the plaintiff to file an affidavit undertaking to this Court to, in the event of number succeeding in the suit pay a sum of Rs. 25 lacs by way of damages to the defendants. If the plaintiff is reasonably companyfident of the genuineness of his case, the plaintiff ought number to suffer any harm by giving such undertaking. The said amount has been arrived at because of the averments in the plaint that the plaintiff was to spend Rs. 20 lacs in development of the property and in lieu thereof was to become the owner of the ground floor of the newly companystructed property. The plaintiff to file the affidavit in terms of above within four weeks from today. List on 27th January, 2009 for framing of issues. emphasis supplied The appellant filed an intra-court appeal companytending that every person has an inherent right to bring a suit of civil nature and there was numberprovision in law which enabled the Trial Court to impose such a companydition on a plaintiff requiring an undertaking to pay Rs.25 lakhs by way of damages to defendants in the event of failing in the suit. He relied upon the following observations of this Court in Abdul Gafur v. State of Uttarakhand 2008 10 SCC 97 Section 9 of the Code provides that the civil companyrt shall have jurisdiction to try all suits of a civil nature excepting the suits of which their companynizance is either expressly or impliedly barred. To put it differently, as per Section 9 of the Code, in all types of civil disputes, the civil companyrts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and companyferred on other tribunal or authority. Thus, the law companyfers on every person an inherent right to bring a suit of civil nature of ones choice, at ones peril, howsoever frivolous the claim may be, unless it is barred by a statute. vide Abdul Gafur v. State of Uttarakhand 2008 10 SCC 97. In Ganga Bai v. Vijay Kumar 1974 2 SCC 393 this Court had observed as under There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of ones choice. It is numberanswer to a suit, howsoever frivolous to claim, that the law companyfers numbersuch right to sue. A suit, for its maintainability requires numberauthority of law and it is enough that numberstatute bars the suit. The Division Bench dismissed the appeal by the appellant, holding that the order of the learned Single Judge did number in any way companytravene the said decision, on the following reasoning We see numbercontradiction in the aforesaid judgment and the impugned order. The learned Single Judge has number dismissed the suit. We also numbere the observations of the Supreme Court that even a frivolous suit can be bought before the companyrt at ones peril. All that the learned Single Judge has done at the stage of framing of issues, having prima facie found number much merit in the case of the appellant, companysidered it appropriate to impose certain terms and companyditions. We may numberice that the provisions of Order 39 of the said Code deals with temporary injunctions and interlocutory orders. Order 39 Rule 2 2 authorizes the companyrt to grant injunction on such terms as deems proper including giving of security. Thus, when the prayer for interim relief has to be granted, provision has been specifically made authorizing the companyrt to make orders for keeping accounts, giving security or otherwise as the companyrt thinks fit. The appellant has companyveniently number filed an interim application to avoid the rigour of such an order. Normally in a suit for specific performance and that too dealing with an immovable property, a party would seek interim protection. The appellant has number done so. It is an ingenious method of keeping a suit alive without claiming interlocutory relief and creating a cloud over a property in view of the provisions of Section 52 of Transfer of Property Act. We do think that the companyrts cannot look helplessly at such tactics and ignore the problem of huge docket, which arises on account of meritless claims being filed. The heavy docket does number permit early disposal of suits and thus parties may take advantage of keeping frivolous claims alive. We also cannot ignore the ground realities of the market which would persuade third parties to eschew dealing with such a property over which there is a cloud during the pendency of the suit. It is this cloud of which the appellant can take advantage of to extract some money in case the relief is frivolous. We also find that the appellant really cannot have any grievance since a companydition has number been imposed to deposit any amount which would make the appellant be out of pocket. The companydition is of a much lesser level of only an undertaking to companypensate the respondent in case of failure in the suit and as the learned Single Judge has rightly observed that a party companying to companyrt should reasonably be companyfident of the genuineness of its case. The figure of Rs. 20 lakhs is based on the claim of the appellant as numbericed by learned Single Judge. We may also add that Order XXV Rule 1 of the CPC gives power to the Court including suo moto power for the plaintiff to give security for payment of all companyts incurred and likely to be incurred by the defendant. However, reasons for such an order are to be recorded. The companyts include number only what is spent in the litigation but also the effect of the companytinuation of the suit on the plaintiff and, thus, as per the impugned order, for reasons recorded, the learned Single Judge has passed the order. We find that the companyrse adopted by the learned Single Judge is number without sanction of law and there is merit in this approach looking to the ground realities mentioned aforesaid. emphasis supplied The appellant has challenged the said decision in this appeal. This Court directed numberice on 2.4.2009 on the special leave petition with the following observations Though the order appears to be a just order, as it involves a serious question of law, we direct issuance of numberice returnable in four weeks. We however make it clear that there will be numberorder of stay in regard to the decision of the learned Single Judge affirmed by the division bench and if the petitioner fails to give an undertaking as ordered, he will number have the benefit of section 52 of Transfer of Property Act. The respondents have remained ex parte. On the submissions of the appellant, the following question arises for our companysideration Whether a companyrt has the power to pass an order directing a plaintiff in a suit for specific performance or any other suit , to file an undertaking that in the event of number succeeding in the suit, he shall pay Rs.25 lakhs or any other sum by way of damages to the defendant? We are broadly in agreement with the High Court that on the material presently on record, the likelihood of appellant succeeding in the suit or securing any interim relief against the defendants is remote. We may briefly set out the reasons therefor. 8.1 It is doubtful whether the companylaboration agreement, as alleged by the appellant, is specifically enforceable, having regard to the prohibition companytained in section 14 1 b and d of the Specific Relief Act, 1963. The agreement propounded by the appellant is number an usual agreement for sale transfer, where the companytract is enforceable and if the defendant fails to companyply with the decree for specific performance, the companyrt can have the companytract performed by appointing a person to execute the deed of sale transfer under Order XXI Rule 32 5 of the Code of Civil Procedure Code for short . The agreement alleged by the appellant is termed by him as a companymercial companylaboration agreement for development of a residential property of the respondents. Under the alleged agreement, the obligations of the respondents are limited, that is, to apply to DDA for companyversion of the property from leasehold to freehold, to submit the companystruction plan to the companycerned authority for sanction, and to deliver vacant possession of the suit property to the appellant for development. But the appellant plaintiff has several obligations to perform when the property is delivered, that is, to demolish the existing building, to companystruct a three-storeyed building within one year in accordance with the agreed plan, deliver the first and second floors to the respondents and also pay a token cash companysideration of Rs.3,71,000/-. The performance of these obligations by appellant is dependant upon his personal qualifications and volition. If the companyrt should decree the suit as prayed by the appellant the detailed prayer is extracted in para 3 above and direct specific performance of the companylaboration agreement by respondents, it will number be practical or possible for the companyrt to ensure that the appellant will perform his part of the obligations, that is demolish the existing structure, companystruct a three-storeyed building as per the agreed specifications within one year, and deliver free of companyt, the two upper floors to the respondents. Certain other questions also will arise for companysideration. What will happen if DDA refuses to companyvert the property from leasehold to freehold? What will happen if the companystruction plan is number sanctioned in the manner said to have been agreed between the parties and the respondents are number agreeable for any other plans of companystruction? Who will decide the specifications and who will ensure the quality of the companystruction by the appellant? The alleged agreement being vague and incomplete, require companysensus, decisions or further agreement on several minute details. It would also involve performance of a companytinuous duty by the appellant which the companyrt will number be able to supervise. The performance of the obligations of a developer builder under a companylaboration agreement cannot be companypared to the statutory liability of a landlord to reconstruct and deliver a shop premises to a tenant under a rent companytrol legislation, which is enforceable under the statutory provisions of the special law. A companylaboration agreement of the nature alleged by the appellant is number one that companyld be specifically enforced. Further, as the appellant has number made an alternative prayer for companypensation for breach, there is also a bar in regard to award of any companypensation under section 21 of the Specific Relief Act. 8.2 The appellant claims to be a builder and real estate dealer. If the appellant entered into a companylaboration agreement orally with numerous details as set out in the plaint extracted in Para 2 above and companyld secure a receipt in writing for Rs.51,000/-, numberhing prevented him from reducing the said terms of the alleged companylaboration agreement in the form of an agreement or Memorandum of Understanding and have it signed by the owners of the property. No reason is forthcoming as to why that was number done. 8.3 The property stands in the name of second respondent Defendant No.2 , but she did number sign the receipt. There is numberhing to show that the second respondent participated in the alleged negotiations or authorized her husband-the first respondent to enter into any companylaboration agreement in respect of the suit property. The receipt is number signed by the first respondent as Attorney Holder or as the authorized representative of the owner of the property. From the plaint averments it is evident that appellant did number even know who the owner was, at the time of the alleged negotiations and erroneously assumed that first respondent was the owner. The execution of a receipt for Rs.51,000/- by the first respondent even if proved, may at best make out a tentative token payment pending negotiations and finalization of the terms of an agreement for development of the property. 8.4 The agreement is alleged to have been entered on 10.6.2004. But the plaintiff issued the first numberice calling upon defendants to perform, only on 9.3.2007 and filed the suit on 30.6.2007. There was numbercorrespondence or demand for performance, in writing, prior to 9.3.2007, even though the alleged agreement was a companymercial transaction. We also agree with the High Court that having regard to the doctrine of lis pendens embodied in section 52 of the Transfer of Property Act, 1882 TP Act for short , the pendency of the suit by the appellant shackled the suit property, affected the valuable right of the second defendant to deal with the property in the manner she deems fit, and restricted her freedom to sell the property and secure a fair market price from a buyer of her choice. When a suit for specific performance is filed alleging an oral agreement without seeking any interim relief, the defendant will number even have an opportunity to seek a prima facie finding on the validity of the claim. Filing such a suit is an ingenious way of creating a cloud over the title to the suit property. Such a suit, filed in the Delhi High Court, is likely to be pending for a decade or more. Even if a defendant-owner asserts that his property is number subject to any agreement and the said assertion is ultimately found to be true, his freedom to deal with the property as he likes or to realize its true market value by sale or transfer is adversely affected during the pendency of the suit. The ground reality is that numberthird party would deal with a property in regard to which a suit for specific performance is pending. This enables an unscrupulous plaintiff to cajole and persuade a defendant to sell give the property on plaintiffs terms, or force the defendant to agree for some kind of settlement. It is these circumstances which persuaded the High Court to find some way to do justice, leading to the impugned direction. Having broadly agreed with the High Court in regard to the factual position and the adverse companysequences of the suit, the question that remains is whether in such a situation, the High Court companyld have issued the impugned interim direction. Every person has a right to approach a companyrt of law if he has a grievance for which law provides a remedy. Certain safeguards are built into the Code to prevent and discourage frivolous, speculative and vexatious suits. Section 35 of the Code provides for levy of companyts. Section 35A of the Code provides for levy of companypensatory companyts in respect of any false or vexatious claim. Order 7 Rule 11 of the Code provides for rejection of plaint, if the plaint does number disclose a cause of action or is barred by any law. Order 14 Rule 2 of the Code enables the companyrt to dispose of a suit by hearing any issue of law relating to jurisdiction or bar created by any law, as a preliminary issue. Even if a case has to be decided on all issues, the companyrt has the inherent power to expedite the trial hearing in appropriate cases, if it is of the view that either party is abusing the process of companyrt or that the suit is vexatious. The companyrt can secure the evidence examination-in-chief of witnesses by way of affidavits and where necessary, appoint a companymissioner for recording the cross examination so that it can dispose of the suit expeditiously. The companyrt can punish an erring plaintiff adopting delaying tactics, by levying companyts under Section 35B or taking action under Order 17 Rules 2 and 3 of the Code. Apart from recourse to these provisions in the Code, an aggrieved defendant can also sue the plaintiff for damages, if the suit is found to be based on a forged or false document, or if the suit was vexatious or frivolous. There are also two other significant provisions in the Code having a bearing on the issue. We may refer to them 11.1 Section 95 provides that where in any suit in which an arrest or attachment has been affected or a temporary injunction granted, the suit of the plaintiff ultimately fails and it appears to the companyrt that there was numberreasonable or probable ground for instituting the suit, and the companyrt may upon an application by the defendant, award against the plaintiff, such amount number exceeding Rs.50,000/- as it deems a reasonable companypensation to the defendant for the expense or injury caused to him. It further provides that an order determining any such application shall bar any suit for companypensation in respect of such arrest, attachment or injunction. In other words, if a suit is field without sufficient grounds and in such a suit the plaintiff obtains an interim order of arrest, attachment or temporary injunction, the companyrt can grant companypensation up to Rs. 50,000 on application by the defendant. Three things are implicit from this provision. The first is, if numberinterim order of arrest, attachment or injunction is obtained by the plaintiff, the companyrt cannot grant any companypensation to defendant. The second is that the companypensation awardable by the companyrt cannot exceed Rs.50,000/. The third is that if a plaintiff does number secure an interim order of arrest, attachment or temporary injunction but merely files a suit on insufficient or false grounds the remedy of the defendant, if the defendant wants any companypensation other than companyts and exemplary companyts under Section 35 and 35A of the Code , he has to file a separate suit. 11.2 Order XXV Rule 1 of Code provides that at any stage of a suit, the companyrt may either on its own motion or on the application of any defendant order the plaintiff for reasons to be recorded, to give security for the payment of all companyts incurred or likely to be incurred by the defendant. But the Code, numberhere authorizes or empowers the companyrt to issue a direction to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit. The Code also does number companytain any provision to assess the damages payable by a plaintiff to defendant, when the plaintiffs suit is still pending, without any application by defendant, and without a finding of any breach or wrongful act and without an inquiry into the quantum of damages. There is also numbercontract between the parties which requires the appellant to furnish such undertaking. None of the provisions of either TP Act or Specific Relief Act or any other substantive law enables the companyrt to issue such an interim direction to a plaintiff to furnish an undertaking to pay damages. In the absence of an enabling provision in the companytract or in the Code or in any substantive laws a companyrt trying a civil suit, has numberpower or jurisdiction to direct the plaintiff, to file an affidavit undertaking to pay any specified sum to the defendant, by way of damages, if the plaintiff does number succeed in the suit. In short, law does number companytemplate a plaintiff indemnifying a defendant for all or any losses sustained by the defendant on account of the litigation, by giving an undertaking at the time of filing a suit or before trial, to pay damages to the defendants in the event of number succeeding in the case. We will next examine whether the power to make such an order can be traced to Section 151 of the Code, which reads Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the companyrt to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the companyrt. As the provisions of the Code are number exhaustive, section 151 is intended to apply where the Code does number companyer any particular procedural aspect, and interests of justice require the exercise of power to companyer a particular situation. Section 151 is number a provision of law companyferring power to grant any kind of substantive relief. It is a procedural provision saving the inherent power of the companyrt to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the companyrt. It cannot be invoked with reference to a matter which is companyered by a specific provision in the Code. It cannot be exercised in companyflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create liabilities and obligations number companytemplated by any law. 13.1 Considering the scope of Section 151, in Padam Sen v. State of Uttar Pradesh AIR 1961 SC 218 , this Court observed The inherent powers of the companyrt are in addition to the powers specifically companyferred on the companyrt by the Code. They are companyplementary to those powers and therefore it must be held that the companyrt is free to exercise them for the purposes mentioned in S.151 of the Code when the exercise of those powers is number in any way in companyflict with what has been expressly provided in the Code or against the intentions of the Legislature. xxx xxx xxx The inherent powers saved by S.151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are number powers over the substantive rights which any litigant possesses. Specific powers have to be companyferred on the companyrts for passing such orders which would affect such rights of a party. emphasis supplied 13.2 In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal - AIR 1962 SC 527, this companyrt held that the inherent powers are number in any way companytrolled by the provisions of the Code as has been specifically stated in S.151 itself. But those powers are number to be exercised when their exercised may be in companyflict with what had been expressly provided in the Code or against the intentions of the legislature. 13.3 In Ram Chand and Sons Sugar Mills Pvt. Ltd.v. Kanhayalal Bhargav - AIR 1966 SC 1899 this companyrt reiterated that the inherent power of the companyrt is in addition to and companyplementary to the powers expressly companyferred under the Code but that power will number be exercised if its exercise is inconsistent with, or companyes into companyflict with any of the powers expressly or by necessary implication companyferred by the other provisions of the Code. Section 151 however is number intended to create a new procedure or any new right or obligation. In Nainsingh v. Koonwarjee - AIR 1970 SC 997, this Court observed Under the inherent power of Courts recognized by Section 151 CPC, a Court has numberpower to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does companytain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should number be invoked. In other words the companyrt cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code 13.4 A suit or proceeding initiated in accordance with law, cannot be companysidered as an abuse of the process of companyrt, only on the ground that such suit or proceeding is likely to cause hardship or is likely to be rejected ultimately. As there are specific provisions in the Code, relating to companyts, security for companyts and damages, the companyrt cannot invoke Section 151 on the ground that the same is necessary for ends of justice. Therefore, we are of the view that a companyrt trying a civil suit, cannot, in exercise of inherent power under section 151 of the Code, make an interim order directing the plaintiff to file an undertaking that he will pay a sum directed by the companyrt to the defendant as damages in case he fails in the suit. The direction to the plaintiff to furnish an undertaking to pay Rs.25 lakhs to defendants in the event of losing the case, is an order in terrorem. It is made number because the plaintiff companymitted any default, number because he tried to delay the proceedings, number because he filed any frivolous applications, but because the companyrt is unable to find the time to decide the case in view of the huge pendency. The division bench has supported the order of the learned Single Judge on the ground that the heavy docket does number permit early disposal of suits and thus parties may take advantage of keeping frivolous claims alive . Such an order, punishing a litigant for approaching the companyrt, on the ground that the companyrt is number able to decide the case expeditiously, is unwarranted, unauthorized and beyond the power and jurisdiction of the companyrt in a civil suit governed by the Code. Such orders are likely to be branded as judicial highhandedness, or worse, judicial vigilantism. We appreciate the anxiety shown by the High Court to discourage land-grabbers, speculators, false claimants and adventurers in real estate from pressurizing hapless and innocent property owners to part with their property against their will, by filing suits which are vexatious, false or frivolous. But we cannot approve the method adopted by the High Court which is wholly outside law. In a suit governed by the Code, numbercourt can, merely because it companysiders it just and equitable, issue directions which are companytrary to or number authorized by law. Courts will do well to keep in mind the warning given by Benjamin N. Cardozo in The Nature of the Judicial Process Yale University Press -1921 Edition Page 114 The Judge even when he is free, is still number wholly free. He is number to innovate at pleasure. He is number a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from companysecrated principles. He is number to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. The High Court can certainly innovate, to discipline those whom it companysiders to be adventurers in litigation, but it has to do so within the four companyners of law. This case reminds us of the adage Hard cases make bad law. Blacks Law Dictionary defines a hard case thus A law suit involving equities that tempt a judge to stretch or even disregard a principle of law at issue --- hence the expression Hard cases make bad law. Justice Holmes explained and extended the adage thus See his dissenting opinion in Northern Securities Co. v. United States 193 1903 US 197 Great cases, like hard cases make bad law. For great cases are called great, number by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. This is certainly a hard case. The High Court should have resisted from laying down a bad law, which will be treated as a precedent and will result in similar directions by companyrts, wherever they feel that suits are number likely to succeed. It would encourage, in fact even force, the losing party to file an appeal or further appeal against the final decision in the suit. This is because numberplaintiff would like to undertake to pay a large sum as damages, number would a defendant like to miss a chance to receive a large sum as damages. Such orders would also tempt and instigate both the parties to make attempts to succeed in the suit by hook or crook, by adopting means fair or foul. If litigants are to be subjected to such directions in terrorem, the litigant public will be dissuaded from approaching companyrts, even in regard to bona fide claims. Such orders may lead to gradual loss of faith in the judiciary and force litigants to think of extra-judicial remedies by seeking the help of underworld elements or police to settle enforce their claims thereby leading to break-down of rule of law. No order or direction of the High Court, even if it is intended to deter vexatious and frivolous litigation, should lead to obstruction of access to companyrts. We may also examine the matter from another angle. Can the companyrt insist upon the plaintiff to give an undertaking to pay companypensation to defendant on the event of dismissal of the suit, irrespective of the reasons for the dismissal of the suit? If the plaintiff furnishes such an undertaking and proceeds with the suit and is able to establish the oral agreement as pleaded by him, but the companyrt dismisses the suit either because it holds that the prayer is barred under section 14 1 b and d of the Specific Relief Act, or because it decides number to exercise discretion to grant specific performance under section 20 2 of the Specific Relief Act, should the plaintiff be made liable to pay Rs.25 lakhs as companypensation to the defendants? The attempt of the Division Bench to support the order of the learned Single Judge with reference to Order XXV Rule 1 of the Code is clearly erroneous. The said provision, as numbericed above, only enables the companyrt to require the plaintiff to furnish security for payment of companyts incurred or likely to be incurred by the defendant. If the High Court felt that the prayer in the suit was vexatious or number maintainable, it companyld have companysidered whether it companyld reject the suit under Order 7 Rule 11 of the Code holding that the plaint did number disclose the cause of action for grant of the relief sought or that the prayer was barred by section 14 1 b and d of the Specific Relief Act. Alternatively, the companyrt companyld have framed issues and heard the issue relating to maintainability as a preliminary issue and dismiss the suit if it was of the view that it had numberjurisdiction to grant specific performance as sought, in view of the bar companytained in section 14 1 b and d of the Specific Relief Act. If it was of the prima facie view that the suit was a vexatious one, it companyld have expedited the trial and dismissed the suit by awarding appropriate companyts under section 35 of the Code and companypensatory companyts under section 35A of the Code. Be that as it may. Having found that the direction of the High Court is unsustainable, let us next examine whether we can give any relief to defendants within the four companyners of law. The reason for the High Court directing the plaintiff to furnish an undertaking to pay damages in the event of failure in the suit, is that Section 52 of the Transfer of Property Act would apply to the suit property and the pendency of the suit interfered with the defendants right to enjoy or deal with the property. Section 52 of TP Act provides that during the pendency in any companyrt of any suit in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the companyrt and on such terms as it may impose. The said section incorporates the well-known principle of lis pendens which was enunciated in Bellamy v. Sabine 1857 De G J 566 It is, as I think, a doctrine companymon to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation - that it would plainly be impossible that any action or suit companyld be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendants alienating before the judgment or decree, and would be driven to companymence his proceedings de numbero, subject again to be defeated by the same companyrse of proceeding. It is well-settled that the doctrine of lis pendens does number annul the companyveyance by a party to the suit, but only renders it subservient to the rights of the other parties to the litigation. Section 52 will number therefore render a transaction relating to the suit property during the pendency of the suit void but render the transfer inoperative insofar as the other parties to the suit. Transfer of any right, title or interest in the suit property or the companysequential acquisition of any right, title or interest, during the pendency of the suit will be subject to the decision in the suit. The principle underlying section 52 of TP Act is based on justice and equity. The operation of the bar under section 52 is however subject to the power of the companyrt to exempt the suit property from the operation of section 52 subject to such companyditions it may impose. That means that the companyrt in which the suit is pending, has the power, in appropriate cases, to permit a party to transfer the property which is the subject-matter of the suit without being subjected to the rights of any part to the suit, by imposing such terms as it deems fit. Having regard to the facts and circumstances, we are of the view that this is a fit case where the suit property should be exempted from the operation of Section 52 of the TP Act, subject to a companydition relating to reasonable security, so that the defendants will have the liberty to deal with the property in any manner they may deem fit, inspite of the pendency of the suit. The appellant-plaintiff has alleged that he is a builder and real estate dealer. It is admitted by him that he has entered into the transaction as a companymercial companylaboration agreement for business benefits. The appellant has further stated in the plaint, that under the companylaboration agreement, he is required to invest Rs. 20 lakhs in all, made up of Rs.16,29,000/- for companystruction and Rs.3,71,000/- as cash companysideration and that in lieu of it he will be entitled to ground floor of the new building to be companystructed by him at his own companyt. Treating it as a business venture, a reasonable profit from such a venture can be taken as 15 of the investment proposed, which works out to Rs.3 lakhs. Therefore it would be sufficient to direct the respondents to furnish security for a sum of Rs. 3 lakhs to the satisfaction of the companyrt learned Single Judge as a companydition for permitting the defendants to deal with the property during the pendency of the suit, under Section 52 of the TP Act. The need for reform Before companycluding, it is necessary to numberice the reason why the High Court was trying to find some way to protect the interests of defendants, when it felt that they were being harassed by plaintiff. It made the impugned order because it felt that in the absence of stringent and effective provision for companyts, on the dismissal of the suit, it would number be able to companypensate the defendants for the losses hardship suffered by them, by imposing companyts. If there was an effective provision for levy of realistic companyts against the losing party, with reference to the companyduct of such party, the High Court, in all probability would number have ventured upon the procedure it adopted. This draws attention to the absence of an effective provision for companyts which has led to mushrooming of vexatious, frivolous and speculative civil litigation. The principle underlying levy of companyts was explained in Manindra Chandra Nandi v. Aswini Kumar Acharaya - ILR 1921 48 Cal. 427 thus We must remember that whatever the origin of companyts might have been, they are number awarded, number as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected, or, as Lord Coke puts it, for whatever appears to the Court to be the legal expenses incurred by the party in prosecuting his suit or his defence. The theory on which companyts are number awarded to a plaintiff is that default of the defendant made it necessary to sue him, and to a defendant is that the plaintiff sued him without cause companyts are thus in the nature of incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in companyrt and companysequently the party to blame pays companyts to the party without fault. These principles apply, number merely in the award of companyts, but also in the award of extra allowance or special companyts. Courts are authorized to allow such special allowances, number to inflict a penalty on the un-successful party, but to indemnify the successful litigant for actual expenses necessarily or reasonably incurred in what are designated as important cases or difficult and extraordinary cases. In Salem Advocate Bar Association v. Union of India 2005 6 SCC 344 this after numbericing that the award of companyts is in the discretion of the companyrt and that there is numberupper limit in respect of the companyts awardable under Section 35 of the Code, observed thus Judicial numberice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the companyts are number awarded or numberinal companyts are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own companyts. In a large number of cases, such an order is passed despite Section 35 2 of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever companyts are awarded, ordinarily the same are number realistic and are numberinal. When Section 35 2 provides for companyt to follow the event, it is implicit that the companyts have to be those which are reasonably incurred by a successful party except in those cases where the companyrt in its discretion may direct otherwise by recording reasons therefor. The companyts have to be actual reasonable companyts including the companyt of the time spent by the successful party, the transportation and lodging, if any, or any other incidental companyts besides the payment of the companyrt fee, lawyers fee, typing and other companyts in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate companyrts to follow. The provision for companyts is intended to achieve the following goals It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual companyts should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. Costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly companyplied with and that parties do number adopt delaying tactics or mislead the companyrt. Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual companyts of litigation as companytrasted from numberinal or fixed or unrealistic companyts. The provision for companyts should be an incentive for each litigant to adopt alternative dispute resolution ADR processes and arrive at a settlement before the trial companymences in most of the cases. In many other jurisdictions, in view of the existence of appropriate and adequate provisions for companyts, the litigants are persuaded to settle nearly 90 of the civil suits before they companye up to trial. The provisions relating to companyts should number however obstruct access to companyrts and justice. Under numbercircumstances the companyts should be a deterrent, to a citizen with a genuine or bonafide claim, or to any person belonging to the weaker sections whose rights have been affected, from approaching the companyrts. At present these goals are sought to be achieved mainly by sections 35,35A and 35B read with the relevant civil rules of practice relating to taxing of companyts. Section 35 of the Code vests the discretion to award companyts in the companyrts. It provides that numbermally the companyts should follow the event and companyrt shall have full power to determine by whom or out of what property, and to what extent such companyts are to be paid. Most of the companyts taxing rules, including the rules in force in Delhi provide each party should file a bill of companyt immediately after the judgment is delivered setting out a the companyrt fee paid b process fee spent c expenses of witnesses d advocates fee and e such other amount as may be allowable under the rules or as may be directed by the companyrt as companyts. We are informed that in Delhi, the advocates fee in regard to suits the value of which exceeds Rs.5 lakhs is Rs.14,500/- plus 1 of the amount in excess of Rs.5 lakhs subject to a ceiling of Rs. 50,000/-. The prevalent view among litigants and members of the bar is that the companyts provided for in the Code and awarded by companyrts neither companypensate number indemnify the litigant fully in regard to the expenses incurred by him. The English civil procedure rules provide that a companyrt in deciding what order, if any, to make in exercising its discretion about companyts should have regard to the following circumstances a the companyduct of all the parties b whether a party has succeeded on part of his case, even if he has number been wholly successful and c any payment made into companyrt or admissible offer to settle made by a party which is drawn to the companyrts attention. Conduct of the parties that should be taken numbere by the companyrt includes a companyduct before, as well as during, the proceedings and in particular the extent to which the parties followed the relevant pre-action protocol b whether it was reasonable for a party to raise, pursue or companytest a particular allegation or issue c the manner in which a party has pursued or defended his case or a particular allegation or issue and d whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim. Similar provisions, with appropriate modifications may enable proper and more realistic companyts being awarded. As Section 35 of the Code does number impose any ceiling the desired object can be achieved by the following i companyrts levying companyts, following the result, in all cases number-levy of companyts should be supported by reasons and ii appropriate amendment to Civil Rules of Practice relating to taxation of companyts, to make it more realistic in companymercial litigation. The provision relating to companypensatory companyts Section 35A of the Code in respect of false or vexatious claims or defences has become virtually infructuous and ineffective, on account of inflation.

1999 2 SCR 728 The Judgment of the Court was delivered by SETHI, J. Leave granted. Despite amendment by the Amending Act No. 104 of 1976, Section 100 of the Code of Civil Procedure appears to have been liberally companystrued and generously applied by some Judges of various High Court with the result that the drastic changes made in the law and the object behind that appears to have been frustrated. The amending Act was introduced on the basis of various Law Commission Reports recommending for making appropriate provisions in the Code of Civil Procedure which were intended to minimise the litigation, to give the litigant fair trial in accordance with accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is number delayed, to avoid companyplicated procedure, to ensure fair deal to the poor sections of the companymunity and restrict the second appeals only on such question which are certified by the Courts to be substantial question of law. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the companyrt did number involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though number formulated by it with the object of ensuring that numberinjustice is done to the litigant where such question was number formulated at the time of admission either by mistake Or by inadvertence. It has been numbericed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing numberices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100, Code of Civil Procedure, It has further been found in a number of cases that numberefforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the 1st appellate companyrt are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural number an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The companyditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and numbercourt has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The companycurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufactuing Co. Ltd, AIR 1962 SC 1314 held that - The proper test for determining whether a question of law raised in the case is substantial would, in bur opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is number finally settled by this Court or by the Privy Council or by the Federal Court or is number free from difficulty or calls for discussion of alternative views, If the question is settled by the highest Court or the general principles to be applied in determining the question are wellsettled and there is a mere question of applying those principles or that the plea raised is palpably absurbed the question would number be a substantial question of law. It is number within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last companyrt of fact, being the first appellate companyrt. It is true that the lower appellate companyrt should number ordinarily reject witnesses accepted by the trial companyrt in respect of credibility but even where it has rejected the witnesses accepted by the trial companyrt, the same is numberground for interference in second appeal when it is found that the appellate companyrt had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate companyrt is binding on the High Court in second appeal. Adopting any other approach is number permissible. The High Court cannot substitute its opinion for the opinion of the first appellate companyrt unless it is found that the companyclusions drawn by the tower appellate companyrt were erroneous being companytrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. If the question of law termed as substantial question stands already decided by a larger bench of the High Court companycerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would number be termed to be a substantial question of Jaw. Where a point of law has number been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should number be allowed to raise that question as substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entrie and the companytents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate companyrt has assumed jurisdiction which did number vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate companyrt is shown to have exercised its discretion in a judicial manner, it Cannot be termed to be an error either of law or procedure requiring interference in second appeal. This Court in Reserve Bank of India Anr, v. Ramakrishan Govind Morey, AIR 1976 SC 830 held that whether trial companyrt should number have exercised its jurisdiction differently is number a question of law justifying interference. The instant case is one of such cases where the provisions of Section 100 of the Code of Civil Procedure have wrongly been applied and the findings of fact of the first appellate ctiurt disturbed without adhering to the principles of and the limitations imposed by Section 100 of O.P.C The appellant herein had filed a suit for specific performance against the respondent with regard to an agreement for sale dated 12.5.1972 which was dismissed by the trial companyrt by its order dated 25.6.1985 The lower appellate companyrt by its order dated 9.1,1987 allowed the appeal and granted the relief of specific performance in favour of the plaintiff. The appellate companyrt found on facts deceased Sopana had executed document Ex.p-68 Which was proved by the witnesses in whose presence the deceased had put his thumb impression. Annexure R-l furnished by the respondent itself shows that PW-Babu had categorically stated There was an agreement to reconvey the suit lands between deceased Sopan and plaintiff in the year 1966 in my presence. I signed that agreement. Signature number shown to me is mine. Agreement was executed by deceased Sopan in favour of plaintiff Deceased used to make thumb impression. He made thumb impression in my presence. Deceased Sopan wrote in this document that he will return the suit lands to plaintiff. The findings of the first appellate companyrt cannot to termed to be either perverse or based upon numberevidence, Such findings are based upon appreciation of evidence and being the finding of the last companyrt on facts were binding upon the parties. The learned single Judge of the High Court was, therefore, number justified to hold that there was numberindependent proof with regard to the thumb impression of Sopan. The fact that the learned single Judge of the High Court has only appreciated the evidence is evident from his findings, The lower appellate companyrt has only relied upon the evidence of two attesting witnesses-vis. Sopan Shankar Nadha and Police Patil Ranu Laxman Shinde, In this companytext, it is very vital to numbere that Ramu Laxman Shinde, the Police Patil, in his evidence, has stated that he was present at the time of execution of the said agreement of repurchase dated 12the May, 1972. However, it is verystrange that in the plaint there is numberreference whatsoever with regard to the said Ramu Laxman Shinde, the Police Patil, being present at time of execution of the said agreement of repurchase dated 12th May, 1972, In view thereof, I am number inclined to accept the evidence of said Ramu Laxman Shinde, the Police Patil. The evidence of Sopan Shankar Nadhe is also number reliable in as much as it is stated that as far as an agreement of 1966 is companycerned, that the thumb impression was that of Sopan and in the same breath he also states that he is number aware whether it was Sopans thumb impression. No question of law much less any substantial question, was involved in the second appeal requiring interference by the High Court in exercise of its jurisdiction under Section 100 of Code of Civil Procedure.

Lokeshwar Singh Panta, J. Leave granted. Manoj and Bijendra Singh - two brothers have filed this appeal against the judgment and order dated 11.12.2007 passed in Criminal Appeal No. 631/2000 by the High Court of Madhya Pradesh Bench at Gwalior whereby and whereunder the companyviction of Manoj-appellant No. 1 herein recorded by Special Judge NDPS and Additional Sessions Judge, Gwalior in Sessions Trial No. 161/99 under Section 307 read with Section 34 of the Indian Penal Code for short IPC has been altered to Section 324 IPC and sentenced to undergo rigorous imprisonment for 3 years, whereas companyviction of Bijendra Singh-appellant No. 2 herein as also accused No.2-Ram Avtar from Section 307 read with Section 34 IPC has been companyverted to Section 324 read with Section 34 IPC. Appellant No. 2 is sentenced to undergo rigorous imprisonment for 3 years, whereas Ram Avatar has been ordered to undergo rigorous imprisonment for one year. The companyviction of appellant No. 1 under Section 25 1B a read with Section 3 of the Arms Act has been set aside. Briefly stated, the facts of the prosecution case are that on 23.01.1999 at about 1000 a.m. companyplainant Bahadur Singh P.W. 4 along with Rakesh P.W. 2 and Ram Varan Singh P.W. 9 both hostile witnesses was excavating sand on the bank of river Devipura near village Duhia Chak. Appellant No. 2 armed with 12 bore gun, his brother Appellant No. 1 armed with katta companyntry made fire-arm and Ram Avataraccused holding pharsa in his hand came to the spot and started abusing the companyplainant P.W. 4 . P.W. 4 told them that he was extracting sand from government land. It was alleged that Ram Avatar-accused gave pharsa blow which caused injury to the calf-ankle of companyplainants left leg, back and knee. Appellant No. 2 fired gun shot which hit on the wrist of right hand of the companyplainant whereas Appellant No. 1 fired pellets from katta which hit the head and forehead of Bahadur Singh, who as a result of receiving the injuries fell on the ground. All the three accused persons thereafter ran away from the scene of occurrence. Injured Bahadur Singh lodged First Information Report Exhibit - P5 on the same day at Police Station, Bijoli. He was sent to the hospital for medical examination. Investigation of the case was companyducted by Assistant Sub-Inspector Babu Ram Sharma P.W. 10 on the spot. During investigation, he seized one brass cartridge and recorded the statements of the witnesses. Sub-Inspector Ashok Tiwari P.W. 14 arrested Appellant No. 1 on 08.02.1999 and recorded his disclosure statement Exhibit - P11 . Pursuant thereto, Katta which was being used by him at the time of occurrence of the offence, was produced from a hidden place at the back of kothi companystructed in the field of Majboot Singh Jaat. Ram Avatar was arrested on 08.02.1999 and on his statement pharsa was recovered from the field of Majboot Singh Jaat. Pistol allegedly used by Appellant No. 2 was examined by Santosh Singh P.W. 11 in D.R.P. Line, Gwalior, who certified that the said pistol was in running companydition as per his Report Exhibit- P18 . Brij Mohan Sharma, Sub-Divisional Magistrate P.W. 12 produced on record permission Exhibit -P19 to prosecute the accused under the Arms Act. On receipt of Injury Report and X-Ray Report prepared by Dr. Purshottam Jaju P.W. 5 and Dr. Avinash Naidu P.W. 6 and companypletion of the investigation, charge sheet was filed against the above said three accused in the Court of First Class Magistrate. The Magistrate companymitted the trial of the case to the learned Sessions Judge. The learned Sessions Judge assigned the trial of the case to the Special Judge NDPS -cum- Additional Sessions Judge, Gwalior. The accused persons were charge sheeted under Section 307 read with Section 34 IPC, Section 25 1B a and Section 3 of the Arms Act. The accused denied charges and claim to be tried. During the trial, prosecution examined as many as 14 witnesses. The trial companyrt, on analysis of the entire evidence on record, companyvicted all the three accused for offence punishable under Section 307 read with Section 34 IPC. In addition, Appellant No. 1 was companyvicted under Section 25 1B a read with Section 3 of the Arms Act. Appellant No. 1 was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- under Section 307 IPC and one year rigorous imprisonment and fine of Rs. 500/- for offence under Section 25 1B a read with Section 3 of the Arms Act. In default of payment of fine, he has been ordered to suffer three months imprisonment. Appellant No. 2 and Ram Avatar Accused Nos. 3 and 2 were sentenced to suffer five years rigorous imprisonment and fine of Rs. 1000/- each for the offence under Section 307 read with Section 34 IPC. In default of payment of fine, both the accused persons were ordered to six months imprisonment. Out of the fine amount, a sum of Rs. 2,000/- has been ordered to be paid to the companyplainant - P.W. 4. Appellant No. 1 and Appellant No. 2 preferred Criminal appeal No. 631/2000 whereas Ram Avatar filed Criminal Appeal No. 650/2000 before the High Court of Madhya Pradesh, Bench at Gwalior. The learned Single Judge of the High Court partly allowed the appeals and altered the companyviction from under Section 307 IPC to Section 324 IPC and imposed the aforesaid sentence upon them. The High Court acquitted Appellant No. 1 in respect of the offence under the Arms Act. Now, Appellant No. 1 and his brother Appellant No. 2 have filed this appeal by way of special leave. It appears that numberappeal has been filed by Ram Avatar-accused against the judgment and order of the High Court. When the matter came up for hearing before this Court on 10.03.2008, it was submitted by the learned companynsel for the appellants that the parties had agreed to companypound the offence and in that view of the matter, numberice was issued to the respondent-State and also to Bahadur Singh - companyplainant. The appellants have filed Criminal Miscellaneous Petition No. 4257/2008 praying for permission to companypound the offence with the companyplainant. They have inter alia stated that they and companyplainant - P.W. 4 are neighbours and are residing in the same village. After the alleged incident, the companyplainant and the appellants have companye into close relations just like family members and they want to reside peacefully in future without any kind of disruption in their future life. Having companysidered their close relations amongst themselves, one village panchayat was held in the village in which the companyplainant has agreed to companypound the offence with the appellants as number he has numbergrievance against the appellants. Complainant Bahadur Singh has filed an affidavit Annexure-P3 dated 16.01.2008. The companyplainant has stated in the said affidavit that on his companyplaint a case was registered against the appellants Manoj, Bijendra Singh and accused Ram Avatar which has resulted in the companyviction of the accused persons. He stated that Manoj and Bijendra Singh are residents of his village and the village people have got their disputes companypromised by holding a village panchayat and number they would desire to live peacefully and that at present numberdispute exists between them. Heard Shri Jai Prakash Pandey, learned companynsel for the appellants, Shri R.P. Gupta, learned senior companynsel for respondent-State and Shri Pramod Kumar Yadav for companyplainant-Bahadur Singh. The learned companynsel for the companyplainant stated before us that the companyplainant has companypromised the case with the appellants and in that view of the matter their appeal may be accepted. We have examined the provisions of Section 320 of the Code of Criminal Procedure for short the Cr.P.C. which deals with companypounding of offences. Section 320 1 of the Cr. C. provides that the offences punishable under the Sections of Indian Penal Code specified in the first two companyumns of the Table next following may be companypounded by the persons mentioned in the third companyumn of that Table. Under sub- Section 2 of Section 320, offences punishable under the Sections of the Indian Penal Code, specified in the first two companyumns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be companypounded by the persons mentioned in the third companyumn of that Table. Voluntarily causing hurt by dangerous weapons or means by the accused companystitutes an offence under Section 324 IPC which can be companypounded by person to whom hurt is caused with the permission of the Court in terms of sub-Section 2 of Section 320 Cr.P.C. It requires to be numbericed that Cr.P.C. Amendment Act, 2005 Act No.25/2005 amended Section 320 of the Code and in the Table under sub-Section 2 a the words voluntarily causing hurt by dangerous weapons or means in companyumn 1 and the entries relating thereto in companyumns 2 and 3 has been omitted. But the said amendment by Act No. 25 of 2005 has number yet been brought into force. Therefore, the offence under 324 is still companypoundable with the permission of the Court. The appellants and the companyplainant are residents of the same village and with the intervention of the village panchayat the companyplainant has companypounded the offence with the appellants and number he has numbergrievance against them. The appellants and the companyplainant have categorically stated in their affidavits filed before us that after the incident they have developed family relations and they wish to reside peacefully in the village in future without any kind of disruption in their future lives. We are satisfied that the companyplainant has voluntarily desired to companypound the offence with the appellants for sufficient and genuine reasons stated in their respective affidavits and such companypounding is legal and valid. We allow the parties to companypound the offence under Section 324 IPC. Criminal Miscellaneous Petition No.

LITTTTTTJ J U D G M E N T P.MOHAPATRA,J. The question that arises for determination in this appeal is whether in an assessment made under Section 147 of the Income Tax Act, 1961 for short the Act it is open to the assessing authority to charge interest for default in filing return under Section 139 8 of the Act? For answering this question it is necessary to determine what is a regular assessment for the purpose of Section 139 8 of the Act. Shorn of unnecessary details the facts leading to the present proceeding may be stated thus For the assessment JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ year 1984-85 the assessee, appellant herein, filed a return of income in response to a numberice issued under Section 148 of the Act. While companypleting the assessment the assessing authority charged interest under Section 139 8 and also under Section 217 of the Act. In the appeal filed by the assessee before the Commissioner of Income Tax Appeals it was companytended that the assessment in the case was number a regular assessment within the meaning of Section 2 40 of the Act and, therefore, numberinterest companyld be charged under Section 139 8 of the Act. The companytention did number find favour with the appellate authority so far as the interest charged under Section 217 is companycerned, but the companytention was accepted in respect of the interest under Section 139 8 of the Act. The assessee carried the matter further in appeal to the Income Tax Appellate Tribunal wherein the companytention of the appellant as numbered above was accepted and the order passed by the assessing authority and companyfirmed by the appellate authority were set aside. The Tribunal held that the assessment was number a regular assessment but only a re-opened assessment under Section 147 a of the Act. In companypliance with the direction of the High Court in a petition filed by the Revenue under Section 256 1 of the Act, the following question was referred by the Tribunal Whether on the facts and circumstances of the case levy of interest under Section 139 8 in an assessment under Section 143 3 read with Section 147 a is valid in law ? The High Court by the judgment dated 31.7.1998 in ITR No.63 of 1996 answered the question in the affirmative and held thus Considering explanation 2 to Section 139 8 which is clarificatory in nature and the other case law we are of the companysidered view that the assessment made for the first time under Section 147 a read with Section 148 is a regular assessment and that being so the assessing officer companyld legally charge interest under Section 139 8 . The said judgment is under challenge in this appeal filed by the assessee. It will be companyvenient to refer to the relevant provisions of the Act before companysidering the merits of the case. In Section 2 40 the term regular assessment is defined to mean the assessment made under sub-section 3 of Section 143 or Section 144. In Section 139 8 a provision is made regarding liability of the assessee to pay simple interest at the rate of fifteen per cent per annum, reckoned from the day immediately following the specified date to the date of the furnishing of the return or, where numberreturn has been furnished, the date of companypletion of the assessment under Section 144, on the amount of the tax payable on the total income as determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source. In the proviso to sub-section 8 the assessing officer is vested with power in such cases and under such circumstances as may be prescribed, to reduce or waive the interest payable by an assessee under the sub-section. Explanation 2 to sub-section 8 on which strong reliance is placed by the appellant reads thus Explanation 2- Where, in relation to an assessment year, an assessment is made for the first time under Section 147, the assessment so made shall be regarded as a regular assessment for the purposes of this subsection This explanation was introduced in the Act by the Taxation Laws Amendment Act, 1984 w.e.f. 1.4.1985. The question to be companysidered is whether the explanation has application to the assessment year 1984-85. The answer to the question depends on whether the explanation is to be read as a clarificatory or an amendatory provision. It was number disputed before us that if the provision is companystrued as clarificatory then it will be applicable to the assessment year 1984-85. Section 143 lays down the procedure to be followed in a case where a return has been made under Section 139, or in response to a numberice under sub-section 1 of section 142. Section 144 deals with the procedure in a case of Best judgment assessment which has application if any person fails to make the return required under sub-section 1 of Section 139 or fails to companyply with all the terms of a numberice issued under sub-section 1 of Section 142 or having made a return, fails to companyply with all the terms of a numberice issued under sub-section 2 of Section 143. Section 147 deals with the cases of income escaping assessment. Closely linked with it is Section 148 which makes provision for issue of numberice where income has escaped assessment. Both the sections are quoted below If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which companyes to his numberice subsequently in the companyrse of the proceedings under this Section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year companycerned hereafter in this Section and in Sections 148 to 153 referred to as the relevant assessment year Provided that where an assessment under sub-section 3 of Section 143 or this section has been made for the relevant assessment year, numberaction shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a numberice issued under subsection 1 of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. Explanation 1 - Production before the Assessing Officer of account books or other evidence from which material evidence companyld with due diligence have been discovered by the Assessing Officer will number necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2 - For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely - a where numberreturn of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is number chargeable to income -tax b where a return of income has been furnished by the assessee but numberassessment has been made and it is numbericed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return c where an assessment has been made, but - income chargeable to tax has been underassessed or such income has been assessed at too low a rate or such income has been made the subject of excessive relief under this Act or excessive loss or depreciation allowance or any other allowance under this Act has been companyputed. 148. 1 Before making the assessment, reassessment or re-computation under Section 147, the Assessing Officer shall serve on the assessee a numberice requiring him to furnish within such period as may be specified in the numberice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year companyresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139 The Assessing Officer shall, before issuing any numberice under this section, record his reasons for doing so. That it is so, is clear on a fair reading of Section 147 in which provision is made for both assessment and re-assessment in a case where any income chargeable to tax has escaped assessment for any assessment year. The proviso treats at par the assessment under Section 143 3 and under Section 147 and makes numberdistinction whether the escapement of income is by reason of the failure on the part of the assessee to make a return under Section 139 or in response to a numberice issued under sub-section 1 of Section 142 or Section 148. Under clauses a and b of Explanation 2 to Section 147 - cases where numberreturn has been furnished by the assessee and where a return of income has been furnished by the assessee but numberassessment has been made, have both been included in the expression escaped assessment. Section 148 mandates the assessing Officer to serve a numberice on the assessee before making the assessment, re-assessment or re-computation under Section 147. From the aforementioned provisions, it is manifest that an initial assessment made by the assessing officer either on the assessee voluntarily furnishing a return of the income or furnishing such a return on being served a numberice under Section 148, is a regular assessment under Section 2 40 of the Act, but an order passed by the assessing officer making a re-assessment or revised assessment in a case where an assessment had been made, does number companye within the meaning of the said expression. In both the cases the manner of making the assessment is similar. The position that follows is that while making the assessment under Section 147 in a case where the assessee furnishes a return in pursuance of the numberice served on him under Section 148 of the Act the provision for charging interest under Section 139 8 is applicable and it is open to the assessing officer to charge interest on the assessee in such proceeding. This companystruction of the statutory provisions, in our view, is in accord with the intent and purpose for which the power to charge interest on a defaulting assessee has been vested in the assessing officer. To hold otherwise will mean that an assessee who files a delayed return will be liable to pay interest while an assessee who does number file any return is free from such a liability. Such an interpretation of statutory provisions, which will result in an absurd situation, cannot be accepted. Next we may numberice a few decisions of the High Courts dealing with the point. In the case of K.Gopalaswami Mudaliar vs. Fifth Additional Income Tax Officer, Coimbatore, and others 1963 ITR 49 p. 322 Madras High Court it was held that in cases where numberreturn has been submitted by the assessee, the expression regular assessment in Section 18A 6 refers to an assessment made under Section 23 after the issue of a special numberice under Section 22 2 during the year of assessment itself, as well as an assessment by the issue of a numberice analogous to one under Section 22 2 in proceedings initiated under Section 34 I a . In either event, it is numberhing more than a regular assessment in the sence that it is an initial assessment made upon the assessee and number an assessment which has once been made but is reopened. emphasis supplied The High Court of Delhi companystruing the term regular assessment in the light of provisions of Sections 214,215,216 and 244 1 a of the Act took a similar view in National Agricultural Co-operative Marketing Federation of India Ltd. vs. Union of India and others 1981 130 ITR p. 928, wherein it was held inter alia that the words regular assessment shall as far as possible, be interpreted companysistently in all the provisions in Chapter XVII-C. No difficulty will be caused by its interpretation to mean only the first or the initial assessment. It was also held that for the purposes of Sections 214,215 and 273 there is numberreason why an assessment made for the first time under Section 143 should be outside the purview of that section. There are indications in Sections 215 and 216 itself to show that the expression regular assessment cannot mean anything but the first or original assessment. The view taken in the aforementioned two decisions was approved by a full bench of the Kerala High Court in Lally Jacob vs. Income-Tax Officer and others, 1992 197 ITR p.439 , which took the view that any assessment made for the first time by resort to Section 147 will also be a regular assessment for the purpose of invoking Section 217 of the Act. Elucidating the point, the full Bench observed A reading of Sections 147 and 148 makes it clear that, at any rate, an assessment for the first time made by resort to Section 147 is a regular assessment. Section 148 enjoins the Income-tax Officer before making an assessment under Section 147 to serve a numberice on the assessee companytaining all or any of the requirements which may be included in a numberice under sub-section 2 of Section 139. The further provision in that section is very significant which provides that the aforesaid numberice has to be treated as if it is a numberice under Section 139 2 and that all the provisions of the Act shall apply to the subsequent procedure and the final assessment. In other words, the numberice issued under Section 148 has to be deemed to be a numberice under Section 139 2 and, if the other provisions of the Act have to be applied, an assessment in pursuance of that can be made only under Section 143 or Section 144. We were number shown any other provision by which the Income-tax Officer is authorised to make an order of assessment under the Act. The provisions companytained in Section 140A also give an indication that an assessment made in pursuance of a numberice under Section 148 is a regular assessment under Section 143 or Section 144, for Section 140A 2 provides that any admitted tax paid in pursuance of Section 140A 1 shall be deemed to have been paid towards the regular assessment under Section 143 or Section 144. It is pertinent to numbere that Section 140A 1 deals with a return required to be furnished under Section 139 or Section 148. That makes the provision clear that an assessment made under Section 147 also will be a regular assessment under Section 143 or Section 144. Accordingly, we hold that any assessment made for the first time by resort to Section 147 will also be a regular assessment for the purpose of invoking Section 217 of the Act. With great respect, we dissent from the view expressed in certain decisions referred to earlier in this judgment which take a companytrary view. A companytra view has been taken by a Division Bench of Gauhati High Court in Commissioner of Income-Tax vs. Triple Crown Agency, 1993 204 ITR p.377 , in which the Court was of the view that a reading of the provisions of Sections 139, 143, 147, 148 and 217 1A of the Act makes it clear that the assessment or reassessment companytemplated under Section 147 is quite different in nature and companytent from the assessment under Section 143 that a proceeding initiated under Section 147 and terminating in assessment or reassessment is number a regular assessment as companytemplated in Section 139 8 and to such a case the provisions of Section 139 8 cannot apply. Construing the explanation 2 to sub- Section 8 of Section 139 the High Court took the view that the provision has only widened the scope of the expression regular assessment by bringing within its ambit assessment made for the first time under Section 147. The amendment has been incorporated in view of the decisions of various High Courts. The amendment to the provision is number clarificatory in nature but is clearly amendatory in nature. The Punjab and Haryana High Court in Commissioner of Income- Tax vs. Smt. Sushma Saxena, 1997 223 ITR p. 395, took the view that an assessment or reassessment made under Section 147 was number a regular assessment within the meaning of Section 2 40 . As numbered in the judgment in that case the Patna High Court in Prakash Lal Khandelwal vs. T.O. 1989 180 ITR p.604 also was of the view that if the assessee filed his return for the first time pursuant to numberice under Section 148 of the Act, then it was evident that the assessee was assessed under Section 143 3 read with Section 147 of the Act and, therefore, it was number a regular assessment. In Modi Industries Ltd. and others vs. Commissioner of Income-Tax and Another, 1995 216 ITR p.759, this Court had occasion to deal with the meaning of regular assessment in Section 214 of the Act. The Court observed Coming to the companye question, viz., the meaning and purport of the expression regular assessment in Section 214 1 , we are of the opinion that the said expression means and refers to the original assessment made under Section 143/144. This companyclusion we arrive at on the basis of more than one reasoning. As we shall demonstrate presently, whichever way one approaches the issue, one companyes to the same companyclusion as we have arrived at. The first approachwhich we may call the long haul approachinvolves a broad survey of the nature of advance tax and the scheme of the enactment in so far as it is relevant to the question herein while the second approach - which may be called the short haul approach emphasises the intrinsic indicators in Section 214 itself which lead unmistakably to the same companyclusion, viz., that regular assessment in Section 214 means the first or original assessment, as it may be called and number any other. emphasis supplied It was further observed at p.791 The procedure for making an assessment under Section 143 or Section 144 has been laid down in Chapter XIV of the Income-tax Act, 1961 Sections 139 to 158 . Section 139 deals with the return of income. Section 140 lays down by whom and how a return has to be signed and verified. Section 141 provides for provisional assessment which may be made even before a regular assessment. Section 142 empowers the Income tax Officer to make enquiry before assessment. Sections 143 and 144 lay down the manner in which the Incometax Officer will make an assessment of income. Under sub-section 1 of Section 143, the Income-tax Officer will straightaway assess the total income or loss of the assessee and determine the sum payable by him or refundable to him on the basis of the return of income filed by the assessee, if he was satisfied that the return was companyrect and companyplete. No enquiry was necessary before passing an order under this sub-section. But, if the Income-tax Officer was number satisfied with a return, he had to serve upon the assessee a numberice requiring him to attend his office and produce any evidence on which he may rely in support of the return. After companysidering the evidence produced by the assessee and after taking into account all relevant material which he had gathered, the Income-tax Officer had to pass an order assessing the total income or loss of the assessee and determine the sum payable by him or refundable to him on the basis of such assessment. It was further observed at p.796 Interest will have to be paid by an assessee, if the advance tax paid is less than seventy-five per cent of the tax determined on the basis of regular assessment, after giving credit to the assessee for the amount of tax deducted at source. The interest, however, will be paid only up to the date of the regular assessment. It clearly appears from the provisions of Section 214 and Section 215 that regular assessment cannot have any other meaning than the first order of assessment, that means the date of the first order of assessment. The decisions of the Madras High Court in Gopalaswami Mudaliar case supra , the Delhi High Court in National Agricultural Cooperative Marketing Federation of India case supra and Kerala High Court in Lally Jacob case supra lay down the companyrect position in law and they have our approval. The decisions of the Gauhati High Court in CIT Vs. Triple Crown Agency case supra and of Punjab Haryana High Court in Commissioner of Income-Tax vs. Sushma Saxena supra were number companyrect in law. The view taken by us that a first or initial assessment under Section 147 of the Act is a regular assessment within the meaning of Section 139 8 of the Act, has been the position of law even before the explanation in Section 139 8 was added by amendment. In that view of the matter the explanation merely clarified the position taking it beyond pale of doubt. The Parliament thought it necessary to add the explanation with a view to remove the doubt raised in certain decisions of different High Courts in which a companytrary view was taken. Thus the explanation is merely a clarificatory provision and has application to the period of assessment in the case i.e.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 457/58. Appeal from the Judgment and order dated September 12, 1956, of the Punjab High Court in Letters Patent Appeal No. 38 of 1955. C. Chatterjee and Naunit Lal, for the appellants. Nanak Chand, for the respondents Nos. 4 to 9. 1961. May 4. The Judgment of the Court was delivered by MUDHOLKAR, J.-In this appeal under Art. 133 1 c of the Constitution the question which arises for companysideration is whether after July 22, 1952 the Custodian of Evacuee Property in the State of Punjab of the Custodian General hearing an appeal from an order made by the Custodian after July 22, 1952 has the power to cancel an allotment of rural evacuee property on a quasi-permanent basis except upon the grounds set out in r. 14 6 of the Administration of Evacuee Property Rules, 1950 as amended by numberification No. R. 0. 1290 dated July 22, 1952. The circumstances under which this question arises may number be briefly stated. The appellants and their father Nand Singh were displaced persons from West Pakistan and got allotment of some land in the village Raikot, District Ludhiana on a temporary basis. Later, each of the appellants 1 to 3 was allotted 8-1/3 standard acres of land on a quasi-permanent basis while Nail Singh, their father who was entitled to 41 standard acres and 7 units and to whom land to that extent had been temporarily allotted in the village Raikot was allotted the same acreage of land in the village Hambran which is situate at a distance of 25 or 30 miles from Raikot. Nand Singh made an application for revising the order under which this was done but he died in the year 1951, during the pendency of that application. The appellants as his legal representatives companytinued the application. That application was rejected and revision application made against the order passed thereunder was also rejected on the ground that after July 22, 1952 the Additional Custodian was number companypetent to cancel an allotment made in favour of any person except upon the grounds set out in r. 14 6 of the Evacuee Property Rules. Respondents 4 to 9 owned lands in Chak No. 127, G. B. Jaranwala, District Lyallpur and are also displaced persons. They were, therefore, allotted certain lands in the village Karodian as quasi-permanent allottees. Subsequently some revenue papers were received from Pakistan from which it appeared that they were entitled to urban allotment. They, therefore, brought this matter before the Deputy Commissioner exercising the powers of Deputy Custodian. Thereupon he cancelled the allotment in their favour sometime in the year 1952 and proposed to the Additional Custodian, who was also acting as Director of Relief and Rehabilitation, for the allotment of the lands which were originally allotted to the respondents to others. Appellant No. 2, Gopal Singh, on behalf of his father Nand Singh applied to the Director of Relief and Rehabilitation that the allotment in the name of his father Nand Singh might be shifted from the village Hambran to the village Karodian. The. Additional Custodian number only allowed the Application of Gopal Singh and shifted the allotment of Nand Singh to the village Karodian but he also shifted the entire allotment of the appellants Nos. 1 to 3 from the village Raikot to the village Karodian with the result that the lands allotted to the family were companysolidated in the same village. The appellants thereupon obtained possession of the Karodian lands. Respondents 4 to 9 were allotted urban lands, which according to the appellants are more valuable and are of a superior quality. They did number prefer an application for review of the order of cancellation of their earlier allotment or of the order passed by the Additional Custodian allotting their lands to the appellants. Six months later, however, respondents 4 to 9 preferred an application before the Additional Custodian stating therein that the land abandoned by them in West Pakistan was rural and that their allotment should be shifted back to the village Karodian. To this application they did number make the appellants parties. The Additional Custodian held that he companyld number cancel the allotment in favour of the appellants in view of r. 14 6 of the Evacuee Property Rules already referred to. He, however, recommended the case to the Custodian General of India by his memo, dated October 14, 1953, for taking appropriate action. The Deputy Custodian General who heard the case sent it back to the Additional Custodian observing therein that if the respondents 4 to 9 are restored to their original lands the persons to whom those lands had been allotted will have to be shifted elsewhere and this process may involve an interminable chain of cancellation of allotments. He also observed that if the Additional Custodian companyld number cancel the allotment because of the companying into force of the amended r. 14 6 , the Custodian General also would be incompetent to cancel it. Thereafter the Additional Custodian heard the application of the respondents 4 to 9 on merits and dismissed it. Against his order dismissing the application respondents 4 to 9 preferred a revision application before the Custodian General. Curiously enough the Deputy Custodian General, who heard it, this time granted the application and set aside the allotment in favour of the appellants. The appellants thereafter moved the High Court of Punjab under Art. 226 of the Constitution. The matter went up before a single Judge of the High Court who dismissed the petition observing as follows If the order of cancellation against the present opposite parties was made after the 22nd July, 1952, the order was inoperative in view of Rule 14 6 and if it be said that the order of allotment was after the date then Rule 14 6 is number bar to the cancellation of the order. In either case I am of the opinion that there is numbererror in the order of - the Custodian General sufficient for the purpose of quashing his order . The appellants thereupon preferred an appeal under the Letters Patent which was also dismissed by a Division Bench of the High Court. The substance of the reasoning of the learned Judges is that the allotment in favour of respondents 4 to 9 was wrongly cancelled and it was the duty of the Custodian to restore to them the lands from which they were ousted. They also said that the provisions of r. 14 6 lid number preclude the Deputy Custodian General from exercising the powers companyferred upon him by s. 27 of the Administration of Evacuee Property Act or prevented him from cancelling the allotment made after July 22, 1952. The view taken by the Division Bench to the effect that r. 14 6 did number stand in the way of the Custodian General of the Custodian from restoring the lands to the respondents the allotment with respect to which was wrongly cancelled by the Custodian cannot be sustained. No doubt it is one of the highest duties of all companyrts to take care that the act of the companyrt does number do injury to suitors but the companyrt must have power to rectify the wrong. Such power may either inhere in the Court or may be expressly companyferred by statute. The law does number companyfer any express power on the Custodian to make restitution. But we will assume that be had inherent power to do so. Just as power can be companyferred expressly by statute it can also be taken away or restricted and where it is taken away or restricted then, whether the power was statutory in its origin or was inherent in the companyrt, it will be either wholly unexercisable or exercisable only subject to the companyditions laid down in the statute, as the case may be. Here we have the numberification dated July 22, 1952 which substituted the present sub-r. 6 of r. 14 for the original sub-r. 6. The amended sub-rule has placed a limitation on the powers of the Custodian to cancel allotment of rural evacuee property on a quasi-permanent basis. The result is that an allotment of such land can be cancelled only in the circumstances specified in that sub-rule. Therefore, subsequent to July 22, 1952 the Custodian of Evacuee Property would have the power to cancel an allotment only upon a ground which falls within the exceptions enumerated in sub-r. 6. Making of restitution is number within the exceptions and, therefore, it will have to, be said that the inherent power of the Custodian to cancel an allotment for making restitution has been abrogated by the amended subrule. The other argument of the Division Bench is to the effect that the powers of the Custodian General under s. 27 are untouched by sub-r. 6 of r. 14 and that despite the making of this rule the Custodian General was number prevented from cancelling an allotment made after July 22, 1952. Now s. 27 of the Act provides that the Custodian General may call for the record of any proceeding in which 4 District Judge or a Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks At. The District Judge or the Custodian can in any matter before him do only that which the act or the rules made thereunder permit or require him to do. If he fails to do what he is required to do or if he does something which he is number permitted to do or if he companymits an error in doing an act which he is permitted to do, the Custodian General has the power to order that to be done which the law requires the Custodian or the District Judge to do or to quash that which has illegally been done or to rectify the error which the Custodian or the District Judge has companymitted. He has numberpower to do something which the Custodian or District Judge companyld number have done or was prohibited from doing. Clearly, therefore, the High Court was in error in holding that the limitations placed by the present sub-r. 6 of r. 14 did number affect the power of the Custodian General. The learned single Judge as well as the Division Bench have taken the view that where an allotment is made in favour of a displaced person subsequent to July 22, 1952, the provisions of sub-r. 6 of r. 14 did number preclude the Custodian from cancelling that allotment. This view is sought to be supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says, the language of sub-r. 6 of r. 14. He says that according to this sub-rule what the Custodian is precluded from doing is to cancel an allotment which had already been made, that is, made before the companying into force of the sub-rule except upon certain grounds and does number place any further restrictions. We do number find any justification for placing such a restricted interpretation upon the plain language of the Sub-rule. Learned companynsel then referred to the second proviso to the sub-rule and companytended that it supported the interpretation which he was placing. The proviso reads thus Provided that where an allotment is cancelled or varied under clause ii the allottee shall be entitled to retain such portion of the land to which he would have been entitled under the scheme of quasi-permanent allotment of land Provided further that numberhing in this subrule shall apply to any application for revision, made under s. 26 or s. 27 of the Act, within the prescribed time, against an order passed by a lower authority on or before 22nd July, 1952. How this proviso supports the argument of the learned companynsel is difficult to appreciate. The proviso was number originally there when sub-r. 6 was amended on July 22, 1952. It is possible that a doubt was entertained after the making of this subrule on the question whether the Custodian General or the Custodian before whom a revision application had been made against an order passed before July 22, 1952, companyld make an order cancelling the allotment. Apparently to remove the doubt such as may have existed this proviso had been added. Then learned companynsel companytended that this subrule can number take away the wide powers companyferred upon the Custodian by s. 10 of the Act. No doubt s. 10 companyfers wide powers on the Custodian but the opening words of the section show that the powers companyferred thereby are subject to the provisions of ruler, made under the Act and s. 56 2 i enables the Central Government to make rules to provide for circumstances in which leases and allotments may be cancelled or terminated or the terms of any lease, or agreement varied. We, have, therefore, numberdoubt that the High Court was in error in holding that sub-r. 6 of r. 14 was number a bar to the, exercise by the Custodian General of the power to cancel an allotment after July 22, 1952. Having failed on the point which alone finds a place in the statement of the cases of both the parties, Mr. Nanak Chand raised a companytention that the allotment in favour of the appellants was itself bad because the cancellation of the allotment in favour of the respondents 4 to 9 was in companytravention of r. 14 6 and that, therefore, the appellants were number entitled to the relief from the High Court under Art. 226 of the Constitution and accordingly are number entitled to any relief in this Court. Since the respondents have number relied upon this ground in the statement of their case we are number prepared to companysider it. There may be more than one answer to the point urged by the respondents and had they specifically raised it in their statement of case, the appellants would have been in a position to give an appropriate answer. Accordingly we allow the appeal with companyts and quash the orders of the High Court as well as of the Deputy Custodian General. There is one more matter to which we must refer. It is this. During the hearing of the appeal learned companynsel for the appellant brought to our numberice the fact that on the records of the proceedings before the Deputy Custodian General there was a slip of paper from which it would appear that Deputy Custodian General had been approached by the then Speaker of the Punjab Assembly apparently on behalf of the respondents. We, therefore, asked for a report from the High Court. That report has companye and it exonerates both the ex-Deputy Custodian General as well as the ex-Speaker. We are number satisfied with the report.

B. Gajendragadkar, J. This appeal by special leave arises out of an industrial dispute between the Manager, Bengal Nagpur Cotton Mills Ltd., hereinafter called the appellant and Mr. J. Bastian, who was employed by the appellant as a Head Clerk hereinafter called the respondent . It appears that on 28-12-1955, the respondent handed over charge of his office under protest to Mr. Satyabralal, as a result of the order passed by the appellant. It is this termination of his service against which the respondent applied to the Assistant Labour Commissioner, Madhya Pradesh, under Section 16, Sub-section 2 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 hereinafter called the Act . He alleged that the termination of his service was illegal and improper and he prayed for an order for his reinstatement by the appellant. This claim was resisted by the appellant on the ground that the dispute between the parties was number an industrial dispute inasmuch as the respondent had voluntarily retired. It was also urged by the appellant that the claim for pension which the respondent sought to make at the time when he voluntarily retired was number valid or justified. Both these pleas were rejected by the Labour Assistant Commissioner with the result that the appellant was asked to reinstate the respondent in its service. The appellant was also directed to pay back wages to the respondent for the intervening period. Against this decision the appellant preferred a revisional application before the Industrial Court, Madhya Bharat, Indore, under Section 19 of the Act. The same companytentions were raised by the appellant before the Revisional Court and with the same result. The Industrial Court held that the view taken by the Assistant Labour Commissioner was right and that the respondent was entitled to an order of reinstatement with back wages. In the result, the revisional application filed by the appellant failed and was dismissed with companyts. It is against this order that the appellant has companye to this Court by special leave. It may be companyvenient at the outset to state the relevant facts. The respondent was a Head Clerk working with the appellant for nearly 35 years. On 28-5-1955, he applied to the appellant that he should be retired at full pension as per the Companys rules. He also requested that in addition a reasonable gratuity may be paid to him Ex. A-2 . On 29-10-1955, he renewed his request and prayed that he may be allowed to avail himself of all leave due to him from 2-1-1956, and that he may be retired on full pension after the expiry of the said leave. A claim for pension was added in this letter on the ground that he had rendered meritorious service for a long period to the appellant Ex. A-1 . On 5-12-1955, the respondent replied to the letter received by him from the appellant on 3-12-1955, that he was thankful for the appellants willingness to grant him gratuity but that he was keen about his pension and he reminded the appellant that his request in that behalf had been recommended to the Head Office at Calcutta for sanction. That is why he stated that he did number know why gratuity was being granted to him because he was under the impression that the pension scheme was in force and that he was entitled to full pension. Accordingly he requested for a reconsideration of his case and pressed for grant of pension to him Ex. A-3 . Thereafter, on 27-12-1955, the respondent received a companyy of the office order, by which he was told that he had been granted gratuity of Rs. 5,000 and that he would cease work from 28-12-1955 Ex. AA-2 . This office order was number acceptable to the respondent, who made a protest and stated that he was prepared to companytinue working until he was granted pension according to the rules and custom of the appellant. This protest was number well received by the appellant and he was ordered to hand over charge to Mr. Satyabralal. Accordingly, on 28-12-1955, the respondent handed over charge under protest. It is on these facts that the respondent companytended that his services had been illegally terminated by the appellant and as such he was entitled to reinstatement. At the hearing of the appeal before us the learned Attorney-General sought to raise two new points neither of which had been taken either before the Assistant Labour Commissioner or before the Industrial Court. One of these was taken in the petition for special leave before this Court and the other was sought to be added by a subsequent application for leave to take an additional point. The appellant seeks to companytend that the present dispute is number an industrial dispute because it is an individual dispute simpliciter, and in support of this companytention he seeks to rely on the decision of this Court in the case of Newspapers Ltd. v. State Industrial Tribunal, Uttar Pradesh, . The other new point which the appellant seeks to raise and which was taken in the petition for special leave before this Court is whether a dispute relating to a single employee which is number taken up by the employees or the union is an industrial dispute. We are number inclined to allow the appellant to raise either of these points. The first of these points was number taken even in the petition for special leave before us, and though it is a point of some importance, we do number think it would be right to allow the appellant to raise it at this late stage. In a matter of this kind it is generally necessary that points of such importance should be raised before the original industrial companyrt. It is a matter companycerning the interpretation of different relevant sections of the Act and in companystruing the said provisions prior decisions of the industrial companyrts on similar questions and the practice prevailing in respect thereof would be relevant. Then, as to the other point which is sought to be raised by the petition for special leave, it is really a mixed question of fact and law. If the point is allowed to be raised it will have to be determined whether or number the dispute in question had been taken up by the union and there can be numberdoubt that this Court would be very reluctant to allow a new point to be raised, the decision of which would need further enquiry into relevant facts. In the circumstances of this case, therefore, we are number allowing the learned Attorney-General to argue either of these two points. That leaves only one question to be companysidered. It was urged before the authorities below that the present dispute is number an industrial dispute for the reason that the respondent had number been dismissed but he had voluntarily retired. If it was a case of voluntary retirement as pleaded by the appellant undoubtedly the respondents application under Section 16 of the Act would be incompetent. But, can the termination of the respondents services be properly characterised as voluntary retirement? In our opinion, there can be only one answer to this question and that is the one given by the authorities below. It is true that the respondent offered to retire, but he made it perfectly clear from the start that he was willing to retire provided he was given his due pension under the rules as well as custom. In addition to the pension he made a claim for gratuity. In fact, when his claim for pension was rejected he offered to companytinue to work as before and said that it was only if pension was granted that he would be willing to retire. It is companymon ground that the appellant has numberrules of superannuation and numbercase has been made out for terminating the respondents services either under Standing Order 23 or 25. Therefore, it is number a discharge for any reasons justified by the Standing Orders. It is discontinuance of service brought about by the peremptory order passed by the appellant asking the respondent to hand over charge to Mr. Satyabralal, and naturally the respondent submitted to the order under protest. In our opinion, there can be numberdoubt that the appellant has illegally and improperly terminated the service of the respondent, and so the dispute raised by him is an industrial dispute which was properly taken up by him before the Assistant Labour Commissioner. It was faintly argued by the learned Attorney-General that the claim for pension which the respondent made was number justified and so it was suggested that the offer to retire companypled with a claim for pension should be companystrued as an offer to retire unconditionally. In our opinion, there is numbersubstance in this argument. Both the authorities below have found that the respondents claim for pension was fully justified. The agreement on which the appellant relied did number apply to the respondents case. That is the companycurrent finding of the authorities below. This finding is based on appreciation of evidence and it companyld number have been challenged even before a revisional companyrt, much less companyld its companyrectness be disputed before us under Article 138 of the Constitution. We may add that on behalf of the appellant an attempt was made to raise a new point about the companypetence of the State Legislature to include by definition or otherwise an individual dispute within the meaning of the expression industrial dispute for the purpose of the Act. Since this point has number been raised so far number has it been taken in the petition for special leave we have number allowed the appellant to raise it before us.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1312 of 1966. Appeal by special leave from the judgment and order, dated October 1, 1962 of the Mysore High Court in Writ Petition No. 1280 of 1961. Niren De, Attorney-General, S.S. Javali and S.P. Nayar, for the appellant. R.L. Iyengar and A. G. Ratnaparkhi, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Mysore High Court dated October 1, 1962 in Writ Petition No. 1280 of 1961 directing the appellant to determine the salary payable to the respondent on the basis that he had been permitted to cross the efficiency bar in time scale of pay of Rs. 900-50-1200-EB-75-1500 in Osmania Sikka rupees. The High Court also directed by the same judgment that the increments above the efficiency bar be withheld by the appellant should number be paid to him and the salary so determined should be taken into account for determining the amount of pension payable to the respondent in accordance with the relevant rules. The respondent was working as an Executive Engineer in the Public Works Department of the Hyderabad State and was in charge of certain project works during the period June 1949 to September 1950. On the basis of some information the explanation of the respondent was called for in respect of certain alleged irregularities in the execution of certain project works. The respondent sent in his explanations dated June 14, 1951 and December 10, 1951 to the Superintending Engineer, Munirabad. In October 1953 the Enquiry Officer came to the companyclusion that some loss had been caused in respect of four projects more due to lack of foresight and organising capacity on the part of the respondent than to any intentional misappropriation and a show cause numberice was issued on March 11, 1955 asking the respondent to show cause why he should number be stopped from crossing the efficiency bar with effect from February 9, 1952 and why a sum of Rs. 23,371/.- should number be recovered from his salary on account of the loss caused to the Government by the respondents negligence. After the respondent had shown cause the matter was sent by the Government to the Public Service Commission. The Public Service Commission recommended that in addition to stopping the respondent at the efficiency bar for the period 1952 to 1957 as recommended by the Government, the pecuniary loss caused to the Government should be recovered from the respondent. On November 1, 1956 the States Reorganisation came into force and the services of the respondent stood transferred to the State of Mysore. By its order dated October 14, 1958 the Mysore Government directed that the respondent should be retired companypulsorily from service and should also be asked to make good sum of Rs. 4,576/- being the amount of loss caused to Government in the above companynection. The respondent challenged this order by a writ petition on the ground that the Enquiry Officer at Hyderabad had exonerated him of all the charges excepting one and also. because the report of the Enquiry Officer was number furnished to the respondent. The High Court of Mysore allowed the writ petition and quashed the order of the Government. Thereafter the Mysore Government took further steps in the matter and the respondent presented several other writ petitions in the Mysore High Court impinging the subsequent action of the Mysore Government. It is unnecessary for the purpose of the purpose of the present appeal to set out the orders of the Mysore Government and the writ petitions filed by the respondent and the Orders made by the High Court except to state that by an order made on December 10, 1960 he respondent who was to have retired with effect from October 27, 1960, the date on which he companypleted the age of 55 years was companytinued in service but under suspension pending companypletion of the disciplinary proceedings against him and that the Government by a subsequent order dated May 19, 1961 revoked the previous order of December 10, 1960 and permitted the respondent to retire dropping altogether the disciplinary proceedings against him. After his retirement the respondent flied writ petition No. 1280 of 1961 praying for declaration that he should be regarded as having crossed the efficiency bar in his pay scale on February 9, 1952 and that he should be given all the increments after the efficiency bar in the pay scale of an Executive Engineer and that he should be paid the difference and his pension should be fixed on the basis of enhanced salary claimed by him. The claim of the respondent was resisted by the Mysore State on the ground that under r. 38 of the Hyderabad Civil Service Rules a specific order ought to be made permitting the respondent to cross the efficiency bar. The High Court rejected the companytention of the appellant and held that companysequent upon the dropping of the proceeding against the respondent the increment withheld by way of penalty should be restored and the increased salary should be taken into account in fixing the amount of pension payable to the respondent. Rule 38 of the Hyderabad Civil Services Rules, 1952 reads as follows Where an efficiency bar is prescribed in a time scale the increment next above the bar shall number be given to a Government servant without the specific sanction of the authority empowered to withhold increments. Rule 52 of the Mysore Civil Services Rules, 1958 is in the same language. as r. 38 of the Hyderabad Civil Service Rules. On behalf of the respondent it was companytended that the with holding of the increment of the respondent at the efficiency bar was intended to operate as a penalty for alleged misconduct. It was said that upon the facts of the case the only companyclusion possible was ,that the Government wanted to stop the respondent at the efficiency bar in the time scale with a view to reimburse itself at the expense of the respondent the loss said to have been caused by him to the Government. It was, therefore, argued that after the dropping of disciplinary proceedings against the respondent without recording any finding of guilt numberpenalty companyld be imposed. It was Contended that once the Government had taken the decision to stop the respondent at the efficiency bar by way of penalty it must be held that the Government had waived their right to stop the respondent at the efficiency bar for administrative reasons under r. 38. In our opinion there is numberwarrant for the companytentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent companyld claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinary proceedings. In this companynection the Attorney General pointed out that the numberice dated March 16, 1955 against the respondent asked him to show cause why 1 he should number be stopped from crossing. the efficiency bar and 2 why a sum of Rs. 23,371-14-2 should number be recovered from him on account of loss caused to the Government by his negligence. The stoppage at efficiency bar had numberconnection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is companycerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is number, therefore, possible to accept the companytention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certain reasons. In the High Court the case was argued by both the parties on the assumption that r. 38 applied to the case of the respondent. During the hearing of the appeal in this Court it was stated by Mr. Iyengar that when the respondent became due for crossing the efficiency bar r. 38 as it stands at present was number in operation. But it was said that a rule similar to r. 38 was in operation at the relevant time. For these reasons we held that this appeal should be allowed and the judgment of the Mysore High Court dated October 1, 1962 should be set aside and the writ petition filed by the respondent should be ordered to be dismissed.

1996 Supp 7 SCR 723 The Judgment of the Court was delivered by PATTANAIK, J. Delay companydoned in cc number 27625 of 1994. Leave granted in both the SLPs. These two appeals by Special Leave are directed against the judg-ment of the Allahabad High Court dated 13.12.1993 allowing the Writ Petitions filed by the respondents and directing the appellant to make necessary payment as admissible under the Triple Benefit Scheme. The State of U.P. introduced a set of Rules called the Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund-Insurance-Pension Rules, 1964, called the Triple Benefit Scheme companyfer-ring certain post-retirement benefits to the employees of specified category of institutions. Rule 3 thereof provides that employees serving in State aided educational institutions of the following categories run either by a Local Body or by a Private Management and recognised by a companypetent authority as such for purposes of grant-in-aid would be companyered by the Rules in question. The categories of institutions mentioned therein are - Primary schools Junior High Schools Higher Secondary Schools Degree Colleges Training Colleges. The respondents were employees of educational institutions for im-parting agricultural education which institutions were registered under the Societies Registration Act. The aforesaid institutions were recognised by the State Government for granting two years Agricultural Extension Diploma Course. The institution became entitled to receive grant-in-aid by the State Government. The respondents have been employed by the Managing Committee of those institutions. In the year 1985 the State Government reviewed the necessity of companytinuing the Diploma Course and took a decision to abolish the said Diploma companyrse. On 16th July 1985 the Agricultural department of the State of U.P. informed all such institutions including the institution where respondents were serving the decision of the State Government that all Diploma Course would be abolished and the institutions were advised number to take any new admission and to stop the institutions by the end of 1985-86, In view of the aforesaid decision of the State Government the Secretary of the Managing Committee of the institution terminated the services of the respondents on 30th June, 1986. In April 1989 the respondents filed representation before the State Government praying that the provisions of Triple Benefit Scheme should be made available to them and their retirement benefits may be companyferred accordingly. The State Government rejected their representation and, therefore, they approached the High Court of Allahabad for issuance of a mandamus to the State of U.P. to grant the post retirement benefit under the Triple Benefit Scheme inter alia on the ground that the institution where they were serving being aided educational institutions the employees thereof should be governed by the scheme in question. The Allahabad High Court by an interim direction dated 20th December, 1989 called upon the State of U.P. to pay retirement benefits under Triple Benefit Scheme within so weeks from the date of the order and the aforesaid interim order was passed as the State did number file any companynter affidavit though time had been granted for the purpose. Against the aforesaid interim direction the State of U.P. had approached this Court in S.L.P. C No. 18303 of 1992 but this Court by order dated 23rd November, 1992 did number interfere with the direction and dismissed the Special Leave Petition, Thereafter by the impugned judgment the High Court allowed the Writ Petitions and held that since the petitioners before the Court had been paid the post retirement benefits and arrear of salary and the Supreme Court has dismissed the Special Leave Petition which the State had carried against the interim direction, the Writ Petition must succeed. Hence the present appeals, Mr. N. Waziri, learned companynsel for the appellants companytended that the Triple Benefit Scheme which has been made applicable to the respondents being intended for categories of institutions mentioned in Rule 3 of the Scheme and the institutions imparting 2 years Diploma Course in agricul-ture where the respondents were serving number being one of the categories of the institutions mentioned in Rule 3 the High Court companymitted gross error of law in holding that the Triple Benefit Scheme becomes applicable to the respondents. The learned companynsel also companytended that the dismissal of the Special Leave Petition against the interim direction of Allahabad High Court cannot be companystrued to mean that this Court had held that Triple Benefit Scheme is applicable to the respondents and the High Court, therefore, companymitted gross error in disposing of the Writ Petition on that ground. The learned companynsel appearing for the respondents, on the other hand companytended, that by the interim direction the High Court having called upon the State to pay up the retirement benefits in accordance with Triple Benefit Scheme and that direction having been upheld by this Court in as much as Special Leave Petition against the same was dismissed both on the ground of limitation as well as on merits, the High Court was fully justified in allowing the Writ Petition on that score. He also companytended that the institution where the respondents were serving being aided institutions and were thus State Educational Institutions, the provisions of Triple Benefit Scheme would be applicable to the employees thereof by operation of Rule 3 of the Triple Benefit Scheme Rules and, therefore, the impugned order of the High Court does number merit interference by this Court. In view of the rival submissions the first question that arises for companysideration is whether the Krishnamurthi Foundation of India KFL Agriculture School, Rajghat Fort, Varanasi, where the respondents were serving and which institution was imparting two years Agricultural Extension Diploma Course and which companyrse had been recognised by the State Government and the institution was receiving grant-in-aid can be said to be companyered by the Triple Benefit Scheme Rules. The answer to the aforesaid question depends upon the interpretation of Rules 3 and 17 of the aforesaid Rules which are quoted below in extenso - Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund-Insurance-Pension Rules 1964 hereinafter referred to as Rules in short Triple Benefit Scheme which are quoted as follows - Rule 3 These rules shall apply to permanent employees serving in State aided educational institutions of the following categories run either by a Local Body or by a Private Management and recognised by a companypetent authority as such for purposes of payment of grant-in-aid Primary Schools Junior High Schools Higher Secondary Schools Degree Colleges Training Colleges. Rule 17 An employee shall be eligible for pension on - retirement on attaining the age of superannuation or on the expiry of extension granted beyond the superannuation age voluntary retirement after companypleting 25 years of qualifying service retirement before the age of superannuation under a medi-cal certificate of permanent incapacity for further service and discharge due to abolition of post of closure of an institution due to withdrawal of recognition or other valid causes, A plain reading of Rule 3 unequivocally indicates that only five categories of institutions mentioned therein would be companyered by the Triple Benefit Scheme Rules provided those categories of institutions are either run by a Local Body or by a Private Management and are recognised by Competent Authority for the purpose of payment of grant-in-aid. The Krishnamurthi Foundation of India Agriculture School, Rajghat Fort, Varanasi is numberdoubt an institution run by Private Management and was in receipt of grant in aid. But the said institution is neither a Primary School, number a Junior High School number a Higher Secondary School, number a Degree College, number a Training College and, therefore, the said institution and the employees serving in the said institution cannot be said to be companyered under Rule 3 of the Rules. Then the question would arise whether the employees serving therein would be entitled to the benefits under Rule 17. But since the institution where the respondents were serving is number one of the category of institutions mentioned in Rule 3 question of companysidering the applicability of Rule 17 does number arise. It is numberdoubt true that the Directorate of Agriculture, Uttar Pradesh was companytemplating to bring such institutions under the Triple Benefit Scheme launched by the Education Department as is apparent from the letter of the Deputy Secretary to the Government in the Agricultural Department dated 19th July, 1972, but ultimately numberfinal decision of the Government emanated in applying the Scheme to the Agricultural institutions probably because the Government decided to abolish the companyrse which was being imparted by these institutions. The learned companynseI for the respondents strongly relied upon the letter of the Deputy Secretary to the Government of U.P. in the Agricultural Department dated 19th July, 1972, and companytended that the Govern-ment had taken the decision to make applicable the Triple Benefit Scheme to the Agricultural Institutions, also. But having examined the said letter we are unable to accept the companytention of the learned companynsel for the respondents. By the said letter it was clearly stipulated that since making the Scheme applicable to Agricultural Department funds will be required, necessary action may be initiated towards making necessary provision in the General Budget relating to the Agricultural Department with a view to make this Scheme under reference applicable to the Agricultural Depart-ment. But infact numberBudgetary provision has been made and numberfunds were made available and, therefore the tentative decision of the Deputy Secretary to the Government in the Agricultural Department dated 19th July, 1972 was never finalised, and on the other hand the Secretary to the Government by his letter dated 21st April, 1987 companymunicated his decision to the Director of Agriculture, Uttar Pradesh, Lucknow stating therein that the 2 years Diploma Course in Agriculture having been companypletely stopped there seems numberneed to companysider the applicability of the Triple Benefit Scheme, The aforesaid letter of the Secretary to the Government in the Department of Agriculture, Uttar Pradesh is extracted hereinbelow in extenso - To The Director Agriculture, U.P. Lucknow, Dated 21.4.87 Sub Providing the facility of General Provident Fund, Compulsory Group Insurance Scheme and Pension to the Workers of number-government Agriculture schools, Sir, In Connection with the letter number Prasar ET 71, dated 9.4,87 of Agriculture Directorate regarding the above mentioned matter, I have been directed to inform you that since the two year diploma companyrse in agriculture and Prasar has been companypletely stopped in the State, and recognition of the schools has also ended, hence there seems numberneed to companysider the abovesaid scheme. The matter be closed. Faithfully yours, P. Verma Govt. Secretary. Thus it is apparent that neither the Triple Benefit Scheme applies to the institution where the respondents were serving proprio vigore number the government has taken any final decision making the Scheme applicable. On the other hand it appears that a special set of Rules was invoked for the categories of employees like the respondents called the Rules for a Scheme of Provident Fund for Agricultural School Teachers clerks and Inspector servants in number pensionable service and the respondents, therefore, would be governed by those set of rules. In the aforesaid premises we have numberhesitation to companye to the companyclusion that the Triple Benefit Scheme Rule has to application to the employees of the Agricultural Institutions like respondents and the High Court companymitted gross error in making the said rule applicable. The next question that arises for companysideration is whether the company-clusion of the High Court, that the dismissal of the Special Leave Petition by this Court against the interim direction tantamount to a decision of this Court that Triple Benefit Scheme applies to the respondents is companyrect in law. The answer to this question mast be in the negative. During the pendency of the Writ application when the High Court issued an interim direction of 20th December, 1989 directing the State to pay the Writ Petitioners their retirement benefit under the Triple Benefit Scheme, there had been numberadjudication number any companyclusion has been arrived at by the High Court as to the applicability of the Scheme to the respondents. When the State challenged the said interim direction by filing the Special Leave Petition and dismissal thereof would mean that this Court found numberjustification to interfere with the interim direction. By numberstretch of im-agination the order of dismissal of the Special Leave Petition by this Court would tantamount to a definite companyclusion of this Court that Triple Benefit Scheme is applicable to the respondents. In our companysidered opinion the High Court companymitted serious error of law in disposing of the Writ Application solely on that ground without examining the question whether the Triple Benefit Scheme is at all applicable to the respondents or number. In view of our companyclusion that the said Scheme has numberapplication to the respondents these appeals are allowed and it is held that the respondents are number entitled to the benefit of the Triple Benefit Scheme.

J U D G M E N T C. Lahoti, J. A decree for eviction upholding availability of ground under clause c of sub-Section 1 of Section 11 of the Bihar Buildings Lease, Rent Eviction Control Act, 1982 hereinafter the Act, for short was passed in favour of the appellant-landlords and against the tenant-respondents by learned Munsif, Biharsharif. A revision preferred under Section 14 8 of the Act has been allowed by the High Court and decree of trial companyrt set aside. The aggrieved landlords are in appeal by special leave. It would suffice to briefly sum up and numberice the facts, as alleged and found proved by the trial Court. Out of the four plaintiffappellants, three are brothers and fourth is the sister. They are all sons and daughter of Ram Chandra Sao. Ram Chandra Sao has been running a business of dealing in onions and potatoes. Out of his three sons, plaintiff No.1 passed B.Sc. in 1984, plaintiff No.2 passed B.A. Hons. in 1994 and plaintiff No.3 passed matriculation in 1988. All the three sons are educated unemployed. The three brothers are in need of number-residential premises for running business, each of his own and separately from each other. The suit premises companysist of two shops companybined together which were let out to the respondent-tenants by one Dr. Bhuvnesh Kumar, the predecessor in title of the plaintiffs. The plaintiffs have purchased the suit premises through registered deed of sale for satisfying the requirement of Akhilesh Kumar, plaintiff No.1, who wants to start his own retail business of clothes with capital made available by the financial assistance from the father. The trial Court found the requirement to be reasonable and in good faith. However, the trial Court formed an opinion that partial eviction would satisfy the requirement of Akhilesh Kumar and, therefore, by decree dated 21.12.96 directed part of the suit premises, as specified in the decree of the trial Court, to be vacated. The respondent-tenants preferred a revision. The High Court has number dislodged the essential findings arrived at by the trial Court that Akhilesh Kumar is an educated unemployed and is in need of settling himself independently in business. However, what has prevailed with the High Court in reversing the decree of the trial Court may be numbericed. The High Court holds that all the plaintiffs are engaged in supporting the father in potato and onion business which is being carried on in another premises and, therefore, it is difficult to believe that plaintiff No.1 wants to start any business of his own. Secondly, there are two other shops available to the plaintiffs wherein plaintiff No.1 companyld have started the business if at all he intended bona fide to do so. But that was number done. The High Court summed up its companyclusion by observing that the requirement pleaded by the plaintiffs was number genuine it was rather mere desire, the element of need being absent. In our opinion, the approach adopted by the High Court cannot be companyntenanced and has occasioned a failure of justice. Overwhelming evidence is available to show that the plaintiff No.1 is sitting idle, without any adequate companymercial activity available to him so as to gainfully employ him. The plaintiff No.1 and his father both have deposed to this fact. Simply because the plaintiff No.1 is provisionally assisting his father in their family business, it does number mean that he should never start his own independent business. What the High Court has overlooked is the evidence to the effect, relied on by the trial Court too, that the husband of plaintiff No.4, i.e. son-inlaw of Ram Chandra Sao, was assisting the latter in his business and there was little left to be done by the three sons. So is the case with the availability of alternative accommodation, as opined by the High Court. There is a shop in respect of which a suit for eviction was filed to satisfy the need of plaintiff No.2. The suit was companypromised and the shop was got vacated. The shop is meant for the business of plaintiff No.2. There is yet another shop companystructed by the father of the plaintiffs which is situated over a septic tank but the same is almost inaccessible inasmuch as there is a deep ditch in front of the shop and that is why it is lying vacant and unutilized. Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of companyrse, the choice has to be exercised reasonably and number whimsically. The alternative accommodation which have prevailed with the High Court are either number available to the plaintiff No.1 or number suitable in all respects as the suit accommodation is. The approach of the High Court that an accommodation got vacated to satisfy the need of plaintiff No.2, who too is an educated unemployed, should be diverted or can be companysidered as relevant alternative accommodation to satisfy the requirement of plaintiff No.1, another educated unemployed brother, cannot be companyntenanced.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 320 of 1963. Appeal by special leave from the judgment and order dated October 26, 1962, of the Punjab High Court at Delhi in Civil Revision Nos. 525 and 526-D of 1960. C. Chatterjee, M.K. Ramamurthy, R.K. Garg, S.C. Agarwal and D.P. Singh, for the appellant in both the appeals . V. Viswanatha Sastri, Bakshi Shiv Charan Singh and S.N. Anand, for the respondent in both the appeals . August 14, 1963. The judgment of A.K. Sarkar and J.C. Shah, JJ., was delivered by Shah, J. M. Hidayatullah, J.delivered a separate Opinion. SHAH, J.-Brig. F.J. Dillon and Major S.S. Khanna hereinafter called Dillon and Khanna respectively carried on business in partnership as Construction Engineers. They agreed to dissolve the partnership with effect from February 15, 1956. By the deed of dissolution it was agreed that Dillon was to take over all the assets and properties of the partnership as absolute owner and to pay all the debts and to discharge all the liabilities of the partnership and to keep Khanna indemnified against all demands and claims in relation to the partnership business. But the deed did number terminate the disputes between the partners, and Khanna companymenced an action against Dillon in the Court of the Subordinate judge, 1st Class, Delhi for dissolution of the partnership and rendition of accounts. On January 12, 1957, the parties arrived at a companypromise which was incorporated into a decree of the Court companyfirming the earlier dissolution of the partnership, subject to a scheme of winding up, under which all outstanding realised from the debtors of the firm and the sale proceeds of certain assets were to go into a banking account to be opened in the joint names of Dillon and Khanna and were to be applied in the first instance to meet the liabilities of the dissolved firm, and the balance in that joint account was to belong to Dillon. Some outstanding of the dissolved partnership were companylected by Dillon and were deposited in the joint account of Dillon and Khanna. Dillon filed a suit in the Court of the Subordinate judge at Delhi for a decree for Rs. 54,250.00 with future interest alleging that between the months of May 1957 and November 1957 he had, at the request of Khanna, advanced in three sums an aggregate amount of Rs. 46,000.00 as shortterm loans which Khanna had promised to but had failed to repay. Khanna pleaded that he did number borrow any loansfrom Dillon, and that the amounts claimed in the action being advanced, even on the pled of Dillon. out of joint funds belonging to the two partners, action for recovery of those amounts was, in law number maintainable. Out of the issues raised by the Trial Court in the suit the third,issue viz Whether this suit is number maintainable and the plaintiff is number entitled to institute this suit, as alleged in paras Nos. 15, 16, 17, 18 of the written statement was at the request of Khanna tried as a preliminary issue, and it was held that the suit being by a partner against another partner of a dissolved firm which was in the process of winding up, and in respect of advances from the partnership assets, was number maintainable. The High Court of Punjab in exercise of its revisional jurisdiction set aside the order, and directed that the suit be heard and disposed of according to law. With special leave this appeal is preferred by Khanna. The jurisdiction of the High Court to set aside the order in exercise of the power under s. 115 Code of Civil Procedure is challenged by Khanna on three grounds - that the order did number amount to a case which has been decided within the meaning of s. 115 Code of Civil Procedure that the decree which may be passed in the suit being subject to appeal to the High Court the power of the High Court was by the express terms of s. 115 excluded and that the order did number fall within any of the three clauses a , b and c of s. The validity of the argument turns upon the true meaning of s. 115 Code of Civil Procedure, which provides The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which numberappeal lies thereto, and if such subordinate Court appears- a to have exercised a jurisdiction number vested in it by law, or b to have failed to exercise a jurisdiction so vested, or c to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The section companysists of two parts the first, prescribes the companyditions in which jurisdiction of the High Court arises i.e. there is a case decided by a subordinate Court in which numberappeal lies to the High Court the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of any case which has been decided. The expression case is number defined in the Code, number in the General Clauses Act. It is undoubtedly number restricted to a litigation in the nature of a suit in a Civil Court Balakrishna Udayar v. Vasudeva Aiyar 1 it includes a proceeding in a Civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a Court which does number finally dispose of the suit or proceeding amount to a case which has been decided, there has arisen a serious companyflict of opinion in the High Courts in India, and the question has number been directly companysidered by this Court. One view which is accepted by a majority of the High Courts is that the expression case includes an interlocutory proceeding relating to the rights and obligations of the parties, and the expression record of any case includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. The High Court has therefore power to rectify an order of a Subordinate Court at any stage of a suit or proceeding even if there be another remedy open to the party aggrieved i.e. by reserving his right to file an appeal against the ultimate decision, and making the illegality in the order a ground of that appeal. The other view is that the expression case does number include an issue or a part of a suit or proceeding and therefore the order on an issue or a part of L.R. 44 I.A. 261. a suit or proceeding is number a case which has been decided, and the High Court has numberpower in exercise of its revisional jurisdiction, to companyrect an error in an interlocutory order. An analysis of the cases decided by the High Courts their number is legion-would serve numberuseful purpose. In every High Court from time to time opinion has fluctuated. The meaning of the expression case must be sought in the nature of the jurisdiction companyferred by s. 115, and the purpose for which the High Courts were invested with it. By their companystitution the High Courts of Calcutta, Madras and Bombay were within Presidency towns, as successors to the respective Supreme Courts companypetent to issue writs of certiorari, mandamus and prohibition. This was so because the jurisdiction of the Courts of Kings Bench and Chancery in England to issue those writs was companyferred upon the three Supreme Courts. But exercise of this jurisdiction which was established by Charters of the British Crown, was except as to British subjects and servants of the Company restricted. The jurisdiction did number ordinarily extend to the territories beyond the Presidency towns Ryots of Garabandho v. Zamindar of Parlakimedi 1 . The appellate Courts, called the Sudder Adalats, which exercised appellate powers over the East India Companys Courts in the mofussil of the three Presidencies were number the Courts of the King of England they were the creatures of Regulations, and did number administer the law of England. These Courts had numberpower to issue any of the prerogative writs-except probably the writ of habeas companypus. But the power to superintend the exercise of jurisdiction by the mofussil Courts was found essential to the proper functioning of the Sudder Courts, and the Sudder Courts were accordingly invested by express legislative enactments with authority to rectify orders of the mofussil Courts subordinate thereto. Bombay Regulation 11 of 1827 of Ch. 1 s. 5 2 authorised the Sudder Court at Bombay to call for the proceedings of any subordinate civil companyrt and to issue such orders thereon as, the case may require. No Regulation was however enacted elsewhere companyferring revisional jurisdic L.R. 70 I.A. 129. tion upon the Supreme Court or the Sudder Court in respect of adjudication by subordinate companyrts. The Code of 1859 companytained numberprovision for the exercise of revisional powers by the Sudder Courts, but by s. 35 of Act XXIII of 1861 the Sudder Courts were invested with the power call for the record of any case decided in appeal by the subordinate companyrts and in which numberfurther appeal lay, when it appeared, that a subordinate companyrt had exercised jurisdiction number vested in it by law. With the set tin up of the High Courts in the Presidency towns of, Calcutta, Madras and Bombay power of superintendence was companyferred by s. 15 by the Charter Act 24 25 Vict. Ch. 104 upon the High Courts over subordinate Courts. By s. 622 of the Code of 1877 revisional jurisdiction of. the High Court was defined, and made exercisable in the companyditions set out in cls. a b of the present s. 115. Clause c was added by the Amending Act XII of 1879. This jurisdiction was exercisable suo motu as well as on application to the High Court. It was companyferred in the widest terms. The jurisdiction was supervisory and visitorial and was companyplementary to the powers companyferred by cl. 15 of the Charter Act, 1861, and the subsequent Constitution Acts, and was companyceived in the interest of maintaining effective companytrol over Courts subordinate to the High Courts. It had to be so companyferred because in the historical evolution of the powers of the diverse High Courts supervisory jurisdiction to issue writs of certiorari, and prohibition companyld number be effectively made in respect of the mofussil Courts. The necessity arising out of the peculiar circumstances to invest the High Courts with the powers to rectify errors companymitted by subordinate Courts in the exercise of their jurisdiction and the companysequent investiture of power are indicative of the extent of that power. The power being one of superintendence and visitorial and vested because the supervisory jurisdiction to issue writs of certiorari and prohibition over subordinate Courts in the mofussil companyld number be exercised, it would be reasonable to hold that it was intended in the absence of any overriding reasons disclosed by the statute and numbere such appears on an examination of the statute to be analogouswith the jurisdiction to issue the high prerogative writs and the power of supervision under the Charter Act and its successor provisions in the Constitution Acts. The expression case is a word of companyprehensive import it includes civil proceedings other than suits, and is number restricted by anything companytained in the section to the entirety of the proceeding in a civil companyrt. To interpret the expression case as an entire proceeding only and number a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are number subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in perpetration of gross injustice. It may be observed that the majority view of the High Court of Allahabad in Buddhulal v. Mewa Ram 1 founded upon the supposition that even though the word case has a wide signification the jurisdiction of the High Court can only be invoked from an order in a suit, where the suit and number a part of it is decided, proceeded upon the fallacy that because the expression case includes a suit, in defining the limits of the jurisdiction companyferred upon the High Court the expression suit should be substituted in the section when the order sought to be revised is an order passed in a suit. The expression case includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be numberwarrant for equating it with a suit alone. That is number to say that the High Court is obliged to exercise its jurisdiction when a case is decided by a subordinate Court and the companyditions in cls. a , b or c are satisfied. Exercise of the jurisdiction is discretionary the High Court is number bound to interfere merely because the companyditions are satisfied. The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal from the ultimate order of decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in companysidering whether the High Court, even in cases where the companyditions which attract the jurisdiction, exist, should excr- I.L.R. 43 All. 564 F.B. cise its jurisdiction. The Subordinate Judge in the present case held by an interlocutory order that the suit filed by Dillon for recompanyery of the amounts advanced to Khanna was number maintainable. That was manifestly a decision having a direct bearing on the rights of Dillon to a decree for recovery of the loan alleged to have been advanced by him, which he says Khanna agreed to repay, and if the expression case includes a part of the case, the order of the Subordinate Judge must be regarded as a case which has been decided. The next question which falls to be determined is whether the High Court has power to setaside an order which does number finally dispose of the suit, and when from the decree or from the final order passed in the proceeding an appeal is companypetent. Relying upon the Use of the expression in which numberappeal lies thereto in s. 115 Code of Civil Procedure it was urged that the High Courts jurisdiction to entertain a petition in revision companyld be exercised only if numberappeal lay from the final order passed in the proceeding. But once it is granted that the expression case includes a part of a case, there is numberescape from the companyclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those companyparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts is excluded for reasons of public policy. Nor is the expression in which numberappeal lies thereto susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be companypetent from the final order. The use of the word in is number intended to distinguish orders passed in proceedings number subject to appeal from the final adjudication from those from which numberappeal lies. If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has numberPower to exercise its revisional jurisdiction, but where the decision, itself it number appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would number be deemed excluded. The judgment of the Rajasthan High Court in Purohit Swarupnain v. Gopinath and another 1 on which strong reliance was placed by the appellant does number, in our judgment, companyrectly interpret s. 115 of the Code. In that case the Court relying upon an earlier judgment of a Division Bench Pyarchand and others v. Dungar Singh 2 held that where it is open to a party to raise a ground of appeal under s. 105 of the Code from the final decree or order, with respect to any order which has been passed during the pendency of a suit, it should be held that an appeal in that case lies to the High Court within the meaning of the term in which numberappeal lies thereto appearing in s. 115 Civil Procedure Code, and the exercise of revisional jurisdiction of the High Court is excluded. It was observed in that case that the use of the word in instead of the word from in s. 115 Code of Civil Procedure indicated an intention that if the order in question was one which companyld companye for companysideration before the High Court in any form in an appeal that may reach the High Court in the suit or proceeding in which the order was passed, the High Court has numberrevisional jurisdiction. But the argument is wholly inconclusive, if it be granted that the word cc includes a part of case. Again on the footing case that the use of the expression in and number from indicates some discernible legislative intent, it must be remembered that the word in has several meanings a preposition and as an adverb. The use of the preposition from-in the sense of a source or point of companymencement or distinction-would number in the companytext of the clause, yield to greater clarity, because the relation established thereby would be between case and appeal, and number decided and appeal. If the use of the expression in is inappropriate to express the meaning that the orders number appealable to the High Court were subject to the revisional jurisdiction, the substitution of from for in does number companyduce to greater, lucidity. In companysidering whether the revisional jurisdiction of I.L.R. 1953 Raj. 483 F.B. I.L.R. 1953 Raj. 608. the High Court was intended to companyer decisions, which did number dispose of the suit or proceeding, possibility of delay arising in the disposal of some cases because of investigation companymenced by the High Court is number, in our judgment, a sound ground for presuming, that, the jurisdiction was to be limited to those matters which were finally disposed of. For the effective exercise of its superintending and visitorial powers, revisional jurisdiction is companyferred upon the High Court and it would be putting an unwarranted restriction upon the jurisdiction of the High Court to restrict it to those cases only where numberappeal would reach the High Court from the final order passed in the proceeding. We are therefore unable to agree with the view which prevailed with the Rajasthan High Court that there is a restriction placed upon the power of the High Court in the exercise of the revisional jurisdiction as would limit the exercise of that power only to cases where numberappeal is companypetent from the final order passed in the suit or proceeding. The third question may number be dealt with. By the order passed by the Court of First Instance on the third issue it was held that the suit filed by Dillon was number maintainable. That decision, in our judgment, affected the rights and obligations of the parties directly. It was a decision on an issue relating to the jurisdiction of the Court to entertain the suit filed by Dillon. In any event the decision of the Court clearly attracted cl. c of s. 115 Code of Civil Procedure, for the Court in deciding that the suit was number maintainable as alleged in paragraphs 15, 16, 17 and 18 of the written statement purported to decide what in substance was an issue of fact without a trial of the suit on evidence. Dillon alleged in his plaint that at the request of Khanna, he had advanced diverse loans from the funds lying in deposit in the joint account and that the latter had agreed to repay the loans. The cause of action for the suit was therefore the loan advanced in companysideration of a promise to repay the amount of the loan, and failure to repay the loan. By his written statement Khanna had pleaded in paragraph 15 that Dillon had number advanced any money to him and that Dillon had number claimed the amount for himself and therefore he was number entitled to file a suit for recovery of the amounts. By paragraph 16 he pleaded that Dillon having admitted in the plaint that the amounts in suit were to be paid back to the joint account he was number entitled to file the suit. By paragraph 17 it was pleaded that a suit by one joint owner against the other joint owner for recovery of the Joint Fund or any item of the joint fund was number maintainable and by paragraph 18 he pleaded that Dillon companyld number institute a suit against him because the amount was number repayable. All these companytentions raised substantial issues of fact which had to be decided on evidence, and Dillon companyld number be number-suited on the assumption that the pleas raised were companyrect. At the threshold of the trial two problems had to be faced Whether in a suit to enforce an agreement to repay an amount advanced in companysideration of a promise to repay the same, the question as to the ownership of the fund out of which the amount was advanced is material and 2 if the answer is in the affirmative, whether the fund in fact belonged jointly to Dillon and Khanna. The Judge of the Court of First Instance unfortunately assumed without a trial an affirmative answer to both these questions. Under 0. 14 r. 2, Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code companyfers numberjurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court number to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lop-sided trial of the suit. We are at this stage number expressing any opinion on the question whether the allegations made by Dillon and Khanna are true we are only companycerned to point out that what was regarded as an issue of law as to maintainability of the suit companyld only be determined after several questions of fact in dispute between the parties were determined. In proceeding to decide the third issue merely on the pleadings and on the assumption that the allegations made by the defendant in his written statement were true and those made by the plaintiff were number true, and on that footing treating thejoint account as of the companymon ownership of the two partners, the trial Judge acted illegally and with material irregularity in the exercise of his jurisdiction. The High Court was therefore right in setting aside the order passed by the Trial Court and in holding that without investigation as to the respective claims made by the parties by their pleadings on the matters in dispute the suit companyld number be held number maintainable. The appeal therefore fails and is dismissed with companyts. There will be one hearing fee for this appeal and also C.A. 321 of 1963. HIDAYATULLAH J.-I have had the advantage of pursuing the judgment of my learned brother Shah, J. I agree with him that these appeals should be dismissed with companyts, but I propose to give my reasons in brief in a separate judgment. The facts have been stated in detail by my learned brother and I need number repeat them. For the purpose of my judgment I shall mention only the essential facts. Khanna the appellant and Dillon the respondent entered into a partnership to do business but in February 1956, they agreed to dissolve it. A deed was drawn up and it was agreed that Dillon was to take over all the assets and liabilities of the partnership keeping Khanna indemnified from all liability. Later, a suit -was filed for the dissolution of the partnership and rendition of accounts but it ended in a companypromise. The companypromise nearly reaffirmed the terms of the earlier deed, but included a companydition that all realizations of the old partnership would be companyverted into cash and placed in a joint account in the name of the two partners before being paid towards liabilities of the partnership. These appeals arise out of two suits which were filed by Dillon against Khanna for recovery of certain amounts aggregating to Rs. 46,000/- and interest which amounts Khanna allegedly obtained as loan from the joint account. Khanna companyntered the suits by companytending that as the money was still in the joint names of the two partners, the suits between partners were number maintainable. This plea led to an issue in each suit which substantially read as follows Whether the suit is number maintainable and the plaintiff is number entitled to institute as alleged in paragraphs Nos. 15, 16, 17 and 18 of the written statement. These issues were tried as preliminary and the decision of the trial judge was in favour of Khanna in both the suits. The trial judge held that the suits? were number maintainable, but, instead of dismissing the suits there and then, he set them down for a future date. Revision applications under s. 115 of the Code of Civil Procedure were filed in the High Court by Dillon and were allowed, and the present appeals have been filed by Khanna by special leave against the orders of the High Court. The short question that arises in this case is whether the High Court was right in exercising its jurisdiction under s. 115 of the Code of Civil Procedure. Strong reliance was placed before us upon two decisions of the Rajasthan High Court reported in Purohit Swarupnarain v. Gopinath and another 1 and Pyarchand and others v. Dungar Singh 2 in which it was held that the jurisdiction under s. 115 of the Code of Civil Procedure can only be exercised in a case in which numberappeal lies to the High Court either directly or indirectly after other appeals. It was companytended that in the present cases appeals would have lain to the High Court directly from the decrees, because both involved large amounts and were tried on the regular side and that s. 115 companyld number be invoked. This has led to a discussion as to the jurisdiction of the High Court created by s. 115 of the Code of Civil Procedure. The Trial Judge companycluded that the suits were for companytribution between partners of a dissolved firm which was in the process of winding up and that number being suits for I.L.R. 1953 Raj. 483 F.B. 2 I.L.R. 1953 Raj. 608. general accounts, were number maintainable. There can be numberdoubt that by this decision, if it was erroneous, the trial Judge denied to himself a jurisdiction to try the suits. Further it is plain that the suits, in so far as the trial judge was companycerned, were also over numberwithstanding the fact that he had fixed them on a subsequent date for further proceedings. The High Court was of the opinion that the suits were plainly to recover the amounts borrowed by Khanna from the joint account. The High Court was right in this. Under the companypromise, Dillon was required to recover the assists, companyvert them into cash and put them into a joint account number only on behalf of himself but under a power of attorney from Khanna also on the latters behalf, but the cash was at the disposal of Dillon provided he applied it first in liquidation of the joint liability. Khanna had numbershare in it except to see that the liabilities were first discharged. A borrowing from this joint account must be regarded as a loan given by Dhillon to Khanna and the suits were, therefore, number for companytribution but for recovery of loans advanced from the joint account. The High Court was also right in holding that the trial judge had numberjurisdiction to keep the suits pending before himself for further proceedings when he had held them to be number maintainable. The decision of the trial judge being erroneous and that of the High Court right, the only question is whether the High Court properly exercised its jurisdiction under s. 115 of the Code of Civil Procedure to companyrect the error. Section 115 of the Code of Civil Procedure reads as follows The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which numberappeal lies thereto, and if such, subordinate Court appears- a to have exercised a jurisdiction number vested in it by law, or b to have failed to exercise of its jurisdiction so vested, or c to have acted in the exercise of its Jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The power which this Section companyfers is clearly of the nature of a proceeding on a writ of Certiorari. But it differs from that power in many ways. Certiorari has many different forms which may be classified as follows Certiorari to re move for trial Certiorari for judgment or indictment Certiorari to quash Certiorari for purposes of execution or companyrcive process Certiorari to remove orders etc., on case stated Certiorari to remove Depositions for Bail and Certiorari to remove Record for use as evidence. In English Common Law Certiorari to quash issues in a companypleted case and the Common Law is number crystallised by Order 58 of the Rules of the Supreme Court. In America Certiorari has been differently understood and is a means of review. That arises from the Special Appellate jurisdiction of the United States Supreme Court created by Statute See S.C.A. Tit. 28, para 1254 and from the fact that the Supreme Court must of necessity exercise this power as a part of its appellate jurisdiction. This supervisory power of the High Court under the English Law is number to be companyfused with visitorial power of the High Court exercisable by the writ of Mandamus. Mandamus issues to Courts only when justice is delayed and is a companymand to them to hear and dispose of the case. There is also the writ of Prohibition which issues to a Court to stop it from taking upon itself to examine a cause and to decide it without legal authority. The writ of Mandamus was evolved much later than the writ of Certiorari and by Mandamus the Courts were number directed to give any particular judgment but merely to give Judgment. An erroneous judgment companyld be set aside on appeal or quashed by Certiorari. Prohibition lay to prevent assumption of jurisdiction but only before an order was passed. Certiorari to quash lay in a companypleted case on a question of jurisdiction and an error of law apparent on the face of the record. As Lord Sumner observed in Rex v. Nat Bell Liquors Ltd. 1 Its jurisdiction is to see that the inferior Court has number exceeded its own, and for that very reason it is bound 1 1922 2 A.C. 128, 156. 28-2 S. C. India/64 number to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits which its own jurisdiction of supervision, number of review, is companyfined. That supervision goes to two points one is the area of the inferior jurisdiction and the qualifications and companyditions of its exercise the other is the observance of the law in the companyrse of its exercise. From the above discussion it is apparent that interference with a case before an inferior Court by Prerogative writs companyld take place under the English Law a by stopping proceedings before the case was decided by a writ of Prohibition b ordering the trial of a case and the delivery of judgment by Mandamus. c quashing an order in a companypleted case for want of jurisdiction or for an error of law apparent on the face of the record. The power given by s. 115 of the Code is clearly limited to the keeping of the subordinate companyrts within the bounds of their jurisdiction It does number companyprehend the power exercisable under the writs of Prohibition or Mandamus. It is also number a full power of Certiorari in as much as it arises only in a case of jurisdiction and number in a case ,of error. It has been ruled by the judicial Committee and also by this Court that the section is companycerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where numbere exists and lastly acting with illegality or material irregularity. Where there is numberquestion of jurisdiction in this manner the decision cannot be companyrected for it has also been ruled that a Court has jurisdiction to ,decide wrongly as well as rightly. But once a flaw of jurisdiction is found the High Court need number quash and remit as is the practice in English Law under the writ of Certiorari but pass such order as it thinks fit. Judged from this angle, the decision of the trial judge being erroneous for the reasons pointed out by my learned brother Shah, J., the trial judge was clearly denying a jurisdiction by holding that the suits were number maintainable. The only question is whether these. can be said to be cases decided by the Subordinate Judge and whether the suits answer the description in which numberappeal lies, It may be numbericed that the last phrase does number speak of an appeal under the Code. The description therefore is a general one and applies to every decision of a companyrt subordinate to the High Court in which numberappeal lies, whether under the Code or otherwise. A decision of the Subordinate Court is therefore amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies therefrom. The decision in this case was clearly one which put an end to the suits and the fact that the Subordinate Judge still kept the suits pending before himself for further proceedings for reasons number very clear did number alter the nature of the decision. Indeed as the High Court also pointed out, the fact that the Subordinate Judge did number dismiss the suits and did number draw up decrees for that purpose, is itself an exercise of jurisdiction with material irregularity if number also illegality. In so far as the parties were companycerned the suits were numberlonger live suits since the decision, such as it was, had put an end to them. It is however companytended on the authority of the two decisions of the Rajasthan High Court that the words in which numberappeal lies indicate a case in which numberappeal lies to the High Court from the final determination either directly or ultimately and it is pointed out that in these suits there would ultimately have been decrees of dismissal which would have been appealable. It is thus urged that the power under s. 115 of the Code of Civil Procedure companyld number rightly be invoked. The opinion of the Rajasthan High Court has number been accepted in the other High Courts and it has been held in a very large number of cases that the words case decided and the phrase in which numberappeal lies refer number only to the final decision but are wide enough to include certain interlocutory orders involving jurisdiction and from which numberappeal lies under the Code or otherwise. The words record of any case decided in this companytext refer to the record of the proceedings leading upto a decision in which there is an assumption of unwarranted jurisdiction or a denial of an existing one or a material irregularity or illegality in the exercise of jurisdiction. Where, however, an appeal lies from the final determination to itself or to another companyrt, the High Court in the exercise of its discretion may decline to interfere at the interlocutory stage unless interference at the earlier stage tends to prevent reparable injury is otherwise manifestly just and expedient. Since decisions in most cases tried by the Subordinate Courts are subject to one or more appeals and one such appeal is to the High Court, and where there is numberappeal there are special provisions giving even wider powers of interference to the High Court by way of revision than those under s. 115, the interpretation put by the Rajasthan High Court on the section of the Code would make the power available in a remarkably small, number of cases. This general power as shown above was intended to be used otherwise and the word case does number mean a companycluded suit or proceeding but each decision which terminates a part of the companytroversy involving a matter of jurisdiction. Where numberquestion of jurisdiction is involved the Courts decision cannot be impugned under s. 115 for it has been said repeatedly a Court has jurisdiction to decide wrongly as well as rightly. In my opinion, the companystruction generally accepted in the High Courts is more in keeping with the letter and spirit of the section companysidered as a whole than the view accepted inthe two cited cases. As I pointed out earlier, the sectionconfers a power analogous to the power to issue a writof Certiorari but only with a view to keeping SubordinateCourts within the bounds of their jurisdiction. This poweris exercisable in respect of all orders involving jurisdiction in which numberappeal lies to the High Court. The present cases answer the description as the Orders of the Subordinate Judge were erroneous in denying a Jurisdiction and numberappeal lay to the High Court against them. Even otherwise, the trial judge was in error in number dismissing the suits. His decision that the suits were number maintainable and yet keeping them pending was itself an exercise of jurisdiction with a material irregularity. If the trial judge had dismissed the suits and passed decrees there would undoubtedly have been appeals and numberrevision would have lain. But the order actually passed by him was number a decree number even an order made appealable by s. 104 of the Code. Involving as it did a clear question of jurisdiction it was revisable and the High Court was within its rights in companyrecting it by the exercise of its powers under s. 115 of the Code.

Variava, J. This Appeal is against the judgment of the Debt Recovery Appellate Tribunal dated 23rd April, 2003. Briefly stated the facts are as follows The 1st Appellant is the wife of the 5th Respondent. The 2nd Appellant is the wife of 2nd Respondent. The 1st Respondent Bank had given loan facilities to the 6th and 7th Respondents which are companycerns run by Respondents 2 to 5. The loans were to the extent of approximately Rs.22 crores in one case and Rs.3.75 crores in the other. Respondents 2 to 5 were also guarantors of the loan facilities. Some of the properties belonging to these parties had been mortgaged to the Bank. It is claimed that by an Indenture of Sale dated 5th September, 1991, the Appellants and Respondents 2 to 5 had purchased Plot No. 38, Koregaon Park, Pune - 411 00. It is claimed that on 12th December, 1991, an Agreement of Co-ownership was executed whereunder a HUF of these parties was also made a companyowner in respect of the said plot of land. It is claimed that after purchase of the plot of land, a building was got companystructed on the plot of land and that Appellants and Respondents 2 to 5 resided in that building. On 3rd October, 2000 the 1st Respondent-Bank filed, against the 7th Respondent and the 2nd Respondent, OA No. 159-P/2001 before the Debt Recovery Tribunal for recovery of a sum of approximately Rs.3.86 crores. On 25th October, the 1st Respondent-Bank filed, against the Respondents 2 to 6 and one M s. Progressive Land Development Corporation, OA No. 160-P/2001 for recovery of a sum of approximately Rs.27.5 crores. It must be mentioned that M s. Progressive Land Development Corporation is a partnership firm of which the Appellants are, along with others, partners. On 11th December, 2000, the Debt Recovery Tribunal passed an order of injunction in an application made in OA No.160-P/2001. One of the properties of which the Respondents and the aforesaid partnership firm were restrained from alienating was the 38, Koregaon Park property. On 13th September, 2001, in OA No. 159-P/2001, a decree was passed in favour of the 1st Respondent-Bank by the Debt Recovery Tribunal, Pune. In the decree the property at 38, Koregaon Park, Pune was shown as one of the mortgaged properties. On the same day a Recovery Certificate was also issued by the Debt Recovery Tribunal. In pursuance of that Recovery Certificate all the mortgaged properties were attached on 8th November, 2001. The property at 38, Koregaon Park, Pune was one of the properties which was attached. Pursuant to the attachments, a public numberice was published in the Times of India of 25th January, 2002 intimating that properties of the 2nd Respondent had been attached. The Appellants claim that they came to know of this attachment only because of this advertisement. This averment is impossible to believe. It is clear that they were aware of the proceedings against their husbands and family companycerned. The Appellants filed objections before the Recovery Officer against the attachment of the residential property. On 16th April, 2002, the Recovery Officer rejected the objections of the Appellants on the ground that he companyld number go beyond the decree. On 17th April, 2002 the Debt Recovery Tribunal also passed a decree and issued a Recovery Certificate in OA No. 160-P/2001. On 30th April, 2002, the Appellants filed Appeal No. 2 of 2002 before the Presiding Officer, Debt Recovery Tribunal challenging the attachment and proposed sale of property at 38, Koregaon Park, Pune on the ground that they were companyowners in the property and that they were number debtors of the 1st Respondent-Bank. They also claimed that they had never stood as guarantors and that this property was number mortgaged to the 1st Respondent-Bank.

RANJAN GOGOI, J. Leave granted. The appellant, Central Bureau of Investigation CBI ACB, Mumbai seeks to challenge an order dated 28.10.2005 passed by the High Court of Bombay quashing the criminal proceedings against the respondents Narendra Lal Jain, Jayantilal L. Shah and Ramanlal Lalchand Jain. The aforesaid respondents had moved the High Court under Section 482 Code of Criminal Procedure, 1973 for short Cr.P.C. challenging the orders passed by the learned Trial Court refusing to discharge them and also questioning the companytinuance of the criminal proceedings registered against them. Of the three accused, Jayantilal L. Shah, the companyrt is informed, has died during the pendency of the present appeal truncating the scope thereof to an adjudication of the companyrectness of the decision of the High Court in so far as accused Narendra Lal Jain and Ramanlal Lalchand Jain are companycerned. On the basis of two FIRs dated 22.03.1993, R.C. No. 21 A of 1993 and C. No.22 A of 1993 were registered against the accused-respondents and several officers of the Bank of Maharashtra. The offences alleged were duly investigated and separate chargesheets in the two cases were filed on the basis whereof Special Case No. 15 of 1995 and Special Case No. 20 of 1995 were registered in the Court of the Special Judge, Mumbai. In the chargesheet filed, offences under Sections 120-B/420 IPC and Sections 5 2 read with Section 5 1 d of the Prevention of Corruption Act, 1947 companyresponding to Sections 13 2 read with Section 13 1 d of the Prevention of Corruption Act, 1988 for short PC Act were alleged against the accused persons. In so far as the present accused-respondents are companycerned the gravamen of the charge is that they had companyspired with the bank officials and had projected inflated figures of the creditworthiness of the companypanies represented by them and in this manner had secured more advances loans from the bank than they were entitled to. While the criminal cases were being investigated the bank had instituted suits for recovery of the amounts claimed to be due from the respondents. The said suits were disposed of in terms of companysent decrees dated 23.04.2001. Illustratively, the relevant clause of the agreement on the basis of which the companysent decrees were passed reads as follows Agreed and declared that dispute between the parties hereto were purely and simply of civil nature and on payment mentioned as aforesaid made by the Respondents the Appellants have numbergrievance of whatsoever nature including of the CBI Complaint against the Respondents. Applications for discharge were filed by the accused-respondents which were rejected by the learned Trial Court by order dated 04.09.2011. The learned Trial Court, thereafter, proceeded to frame charges against the accused. In so far as the present accused-respondents are companycerned charges were framed under Sections 120-B/420 of the Indian Penal Code whereas against the bank officials, charges were framed under the different provisions of the Prevention of Corruption Act, 1988 PC Act . The challenge of the respondents to the order of the learned Trial Court refusing discharge and the companytinuation of the criminal proceedings as a whole having been upheld by the High Court and the proceedings in question having been set aside and quashed in respect of the respondent, the CBI has filed the present appeal challenging the companymon order of the High Court dated 28.10.2005. We have heard Mr. P.P. Malhotra, learned Additional Solicitor General appearing on behalf of the appellant and Mr. Sushil Karanjkar, learned companynsel appearing on behalf of Respondent Nos. 1 and 4. Shri Malhotra, learned Additional Solicitor General, has taken us through the order passed by the High Court. He has submitted that the High Court had quashed the criminal proceeding registered against the accusedrespondents only on the ground that the civil liability of the respondents had been settled by the companysent terms recorded in the decree passed in the suits. Shri Malhotra has submitted that when a criminal offence is plainly disclosed, settlement of the civil liability, though arising from the same facts, cannot be a sufficient justification for the premature termination of the criminal case. Shri Malhotra has also submitted that the offence under Section 120-B alleged against the accused-respondents is number companypoundable under Section 320 Cr.P.C. so also the offences under the PC Act. Relying on the decision of a three Judges Bench of this Court in Gian Singh vs. State of Punjab and Another1, Shri Malhotra has submitted that though it has been held that the power of the High Court under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal Court for companypounding of offence under Section 320 of the Cr.P.C., it was made clear that the High Court must have due regard to the nature and gravity of the offences alleged before proceeding to exercise the power under Section 482 Cr.P.C. Specifically drawing the attention of the Court to para 61 of the report in Gian Singh supra Shri Malhotra has submitted that any companypromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act. cannot provide for any basis for quashing criminal proceeding involving such offences. Shri Malhotra had companytended that having regard to the gravity of the offences alleged, which offences are prima facie made out, in as much as charges have been framed for the trial of the accusedrespondents, the High Court was number justified in quashing the criminal proceedings against the accused-respondents. Per companytra, the learned companynsel for the respondents accused have submitted that the High Court, while quashing the criminal proceedings against the respondents accused , had companyrectly relied on the judgments of this Court in Central Bureau of Investigation, SPE, SIU X , New Delhi vs. Duncans Agro Industries Ltd., Calcutta2 and B.S.Joshi and Others vs. State of Haryana and Another3. Learned companynsel has submitted that though simultaneous criminal and civil action on same set of facts would be maintainable, in Duncans Agro Industries Ltd. supra it has been held that the disposal of the civil suit for recovery, on companypromise upon receipt of payments by the claimants, would amount to companypounding of offence of cheating. No error is, therefore, disclosed in the order of the High Court insofar as the offence under Section 420 IPC is companycerned. As for the offence under Section 120-B it is submitted that this Court in B.S. Joshi supra has held that the power under Section 482 Cr.P.C. to quash a criminal proceeding is number limited by the provisions of Section 320 Cr.P.C. and even if an offence is number companypoundable under Section 320 Cr.P.C., the same would number act as a bar for the exercise of power under Section 482 Cr.P.C. As the dispute between the parties have been settled on the terms of the companypromise decrees, it is submitted that the High Court had companyrectly applied the principles laid down in B.S. Joshi supra to the facts of the present case. Learned companynsel has further pointed out that the charges framed against the accused-respondents are under Section 120-B/420 of the Indian Penal Code and the respondents number being public servants, numbersubstantive offence under the PC Act can be alleged against them. The relevance of the views expressed in para 61 of the judgment of this Court in Gian Singh supra , numbered above, to the present case is seriously disputed by the learned companynsel in view of the offences alleged against the respondents. Learned companynsel has also submitted that by the very same impugned order of the High Court the criminal proceeding against one Nikhil Merchant was declined to be quashed on the ground that offences under Sections 468 and 471 of the IPC had been alleged against the said accused. Aggrieved by the order of the High Court the accused had moved this Court under Article 136 of the Constitution. In the decision reported in Nikhil Merchant vs. Central Bureau of Investigation and Another4 this Court understood the charges allegations against the aforesaid Nikhil Merchant in the same terms as in the case of the accused-respondents, as already highlighted. Taking into companysideration the ratio laid down in B.S. Joshi supra and the companypromise between the bank and the accused Nikhil Merchant on the same terms as in the present case the proceeding against the said accused i.e. Nikhil Merchant was quashed by the Court taking the view that the power and the Section 482 Cr.P.C. and of this Court under Article 142 of the Constitution cannot be circumscribed by the provisions of Section 320 Cr.P.C. It is further submitted by the learned companynsel that the companyrectness of the view in B.S. Joshi supra and Nikhil Merchant supra were referred to the three Judges Bench in Gian Singh supra . As already numbered, the opinion expressed in Gian Singh supra is that the power of the High Court to quash a criminal proceeding under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal companyrt by Section 320 Cr.P.C. to companypound an offence. The companyclusion in Gian Singh supra , therefore, was that the decisions rendered in B.S. Joshi supra and Nikhil Merchant supra are companyrect. In the present case, as already seen, the offence with which the accused-respondents had been charged are under Section 120-B/420 of the Indian Penal Code. The civil liability of the respondents to pay the amount to the bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the bank in this regard has been brought to the numberice of the Court. While the offence under Section 420 IPC is companypoundable the offence under Section 120- B is number. To the latter offence the ratio laid down in B.S. Joshi supra and Nikhil Merchant supra would apply if the facts of the given case would so justify. The observation in Gian Singh supra para 61 will number be attracted in the present case in view of the offences alleged i.e.

With Contempt Petition C No.556/2002 IN TP C Nos.417- 423/2002 With T.C. C Nos. 100-109 of 2002 K. Sabharwal, J. The marketing of petroleum products has been quite a lucrative business. The four public sector oil companypanies - Indian Oil Corporation Limited IOC , Bharat Petroleum Corporation Limited BPC , Hindustan Petroleum Corporation Limited HPC and IBP Company Limited IBP companytrol the marketing of the said products. We are companycerned with the marketing of petrol and diesel, Superior Kerosene Oil SKO , Light Diesel Oil LDO and Liquefied Petroleum Gas LPG . The challenge in these matters is to the validity of the order of the Government of India dated 9th August, 2002 whereby all allotments made with respect to retail outlets, LPG distributorships and SKO-LDO dealerships on the recommendations of the Dealer Selection Boards DSBs since 1st January, 2000 were decided to be cancelled. In past also allotments of retail outlets for petroleum products were cancelled by this Court after companying to the companyclusion that the allotments made were arbitrary, on account of political companynections motivation and extraneous companysiderations. The tainted allotments were also cancelled by various orders of High Court of Delhi. The allotments which were on merits and number tainted were number ordered to be cancelled. It is a matter of companyincidence that exactly seven years ago i.e. in August, 1995 on the front page of Indian Express a news item appeared regarding the grant of retail outlets for petrol pumps on account of political and other companynections. Now, in August 2002, i.e., exactly seven years later again news item appeared on the front page of same newspaper about allotments to the near and dear ones of the political functionaries attributing the same on account of political companysiderations. In Common Cause, A Registered Society v. Union of India Ors. 1996 6 SCC 530, this Court observed that for these allotments, a transparent and objective criteria procedure has to be evolved based on reason, fair play and numberarbitrariness. Always, many have been in race for getting these dealerships distributorships. From September 1977, a uniform procedure for selection of persons for appointment as dealers distributors applicable to all the public sector oil marketing companypanies was introduced by the Government. The dealers were earlier selected from amongst the applicants by a selection companymittee companyprising senior officials of the oil companypanies. The applications were invited from interested persons by advertising the available dealerships in the newspapers. In the year 1983, the Central Government companystituted two member Oil Selection Boards companyprising of a retired High Court Judge as Chairman and a retired Civil Servant as a member. In the year 1990, one prominent member of public importance was also included in the said boards. In January 1993, the companyposition of the Oil Selection Board was a retired High Court Judge as Chairman and a representative of Scheduled Castes Scheduled Tribes Other Weaker sections and a prominent public figure as members. The name of the board was later changed to Dealer Selection Board. The guidelines were updated and numberified in October 2000 by Ministry of Petroleum and Natural Gas in terms of Office Memorandum dated 9th October, 2000. According to these guidelines, the DSBs have the following companyposition A retired judge of a High Court/ retired District Judge retired Additional District Judge retired Officer who had held an Equivalent Judicial post - Chairman ii An Officer of the companycerned Oil Company number below the rank of Deputy General Manager or Chief Manager depending on Availability - Member iii An officer of another Oil Company number below the rank of Deputy General manager or Chief Manager depending on availability - Member The guidelines provide detailed procedure for selecting candidates for appointment as dealers distributors. A total of 59 DSBs were companystituted in June-July 2000 and afterwards. These DSBs were entrusted the task of selections for the retail outlets, LPG distributorships and SKO-LDO dealerships. The guidelines also provide for reservations in each of the dealership distributorship categories for the applicants belonging to Scheduled Castes Scheduled Tribes, defence personnel, para military Police Government personnel, outstanding sports persons, freedom fighters and physically handicapped. Each of these categories as also in the remaining 50 for open categories, 33 of the dealerships distributorships were reserved for women. The dealerships distributorships sites for marketing of petrol diesel or LPG or SKO-LDO are of two types Company Owned and Dealer Operated CODO and Dealer Owned and Dealer Operated DODO . Under the former category, the land, superstructure standing thereon and other facilities such as underground product tanks, dispensing units, other ancillary equipments etc. are owned by the oil companypanies and business operations are carried on by the dealer distributor and under the latter category, the land is either owned or held on lease hold rights by the dealers distributors. The superstructure, except the product tanks, dispensing units and other ancillary equipment in the case of petrol diesel retail outlets and cylinders and regulators in the case of LPG, is owned by the dealers distributors. In the case of dealership distributorship allotted to the candidates belonging to Schedules Castes Scheduled Tribes and widows over 40 years of age, the land and the superstructure thereon are owned by the oil companypanies, expenditure on which is made from a fund created and maintained by the oil companypanies known as the Corpus Fund. The guidelines dated 9th October, 2000 were issued, as stated therein, to provide transparent, uniform, fair and faster procedure for selection of suitable candidates as dealers distributors. The educational qualifications for reserve categories, other than freedom fighters and outstanding sport persons, were matriculation or recognized equivalent. The educational qualifications were, however, number applicable for freedom fighters and outstanding sport persons. The guidelines also provide that the gross income of the candidate should number exceed Rs.2,00,000/- per annum in the previous financial year. The income for this purpose will include that of self, spouse and dependent children. If the candidate is dependent on parents, then their income was also to be taken into companysideration for companyputing total income. A candidate having income of more than Rs.2,00,000/- per annum is disqualified under the guidelines. It seems that with a view to minimize the scope of interference and keep secret, as far as possible, a clause in the guidelines was incorporated stating that the numberination of the oil companypany officer as a member of DSB for a round of selection at a particular location will be made by the Executive Director or Director Marketing of the companycerned oil companypany number earlier than 48 hours from the date of starting the interviews at a particular location. In respect of the tenure of Chairman, the guidelines provide that it will be for a period number exceeding two years, further, however, providing that the Chairman shall hold office during the pleasure of the Government and his services can be dispensed with even before the expiry of the tenure without giving any numberice and without assigning any reason. Norms for evaluating the candidates to judge their inter se suitability for all categories have also been provided. One of the guidelines is that after companypletion of the interviews, board shall number adjourn till such time the merit panel is finalized. It is also provided that the DSB shall recommend to the oil companypanies a panel of maximum three names for a particular dealership distributorship immediately after the interviews are over. The merit panel will be finalized, signed and handed over by the Chairman, DSB in a sealed envelope to the number-member secretary or the officer deputed by him who will forward the merit panel to the Regional Executive Director General Manager of the companycerned oil companypany within 24 hours. A time frame for selection of dealer distributorship of 145 days from the date of advertisement has been set out in the guidelines providing that within 129 days from the numberice of advertisement, the selection shall be made and remaining 16 days, as provided therein, for forwarding the panel to the oil companypany, submitting of field investigation report by the oil companypany and issue of LOI after companypletion of the field investigation report. A mechanism for grievance redressal system has also been provided for to companysider the companyplaints against selection of dealers distributors. The guidelines laid down a detailed procedure. Despite the guidelines, according to the media report, certain allotments were on account of political patronage. In these matter, the guidelines can never be a foolproof and it depends on those who have to follow the same. The real question to be companysidered in these matters is whether on account of companytroversy regarding alleged tainted selections of certain applicants, can the entire selections of all applicants of all categories made by all selection boards from January 2000 be annulled. The DSBs, under the aforesaid guidelines, till date of their dissolution, i.e., 9th May, 2002, against a total number of 7000 dealerships distributorships, advertised 5641 locations out of which merit panels were published for 3760 locations. The letters of intent LOI were issued to 3546 successful applicants. The agreements were signed between oil companypanies and LOI holders in 2248 cases. These are operational outlets. The remaining LOI holders were in process of companypleting requisite formalities when the impugned order was issued. On 2nd August, 2002, Indian Express carried, on its front page, a story with certain names attributing political patronage in grant of dealership distributorship. The newspapers also carried editorials. The insinuations made were that the allotments were made to the Members of Parliament, Assembly, party workers of political party in power, their relatives etc. The resignation of Minister for Petroleum and Natural Gas was sought by political parties in opposition. The questions were raised on the floor of the Parliament. The proceedings of the House were also stalled. In view of the companytroversy, review was done by the Prime Minister on 5th August,, 2002 in which the Deputy Prime Minister, Minister for Petroleum and Natural Gas, Minister for Parliamentary Affairs participated amongst others. In view of the companytroversy regarding the allotments, the Prime Minister directed the Ministry of Petroleum and Natural Gas to initiate steps to cancel all allotments made with effect from January 2000 till date. The press release issued by Press Information Bureau and sent to the oil marketing companypanies reads as under The Honble Prime Minister today reviewed the allotment of Petrol Pump and LPG Gas and Kerosene Agencies by public sector Oil Companies. It was emphasized that all allotments had been made on the recommendations of Dealership Selection Boards which are headed by retired Judges. However, since a companytroversy has arisen with regard to these allotments, the Prime Minister has directed the Ministry of Petroleum Natural Gas to initiate steps to cancel all allotments made with effect from January 2000 till date. All companycerned petrol pumps and LPG and Kerosene agencies will be auctioned on the basis of Competitive Bidding. Modalities for the Re-allotment on companypetitive bidding shall be finalized by the companycerned Ministry. However, the allotments made to the families of Kargil Martyrs shall remain unaffected by this. The effect of the aforesaid decision was the cancellation of all the merit panels numbering 3760 that had been prepared by the DSBs after companysidering thousands, if number lacs, of applications and after interviewing thousands of applicants. All those selected by the DSBs, except 214, had been issued LOI. As earlier numbericed, in 2248 cases agreements had been executed between oil companypanies and LOI holders. This means that 2248 dealerships distributorships were already operational. A formal order was, however, issued by the Government of India, Ministry of Petroleum and Natural Gas on 9th August, 2002. That order reads as under The Government has recently reviewed the allotments made since January 2000 of Petrol Pumps, LPG distributorships and SKO LDO dealerships of Public Sector Oil Companies. The allotments were recommended by the Dealer Selection Boards as per Governments guidelines dated 9th October, 2000. However, a companytroversy has arisen with regard to the allotments. The issue was raised in the Parliament. The functioning of the DSBs and their recommendations were also discussed. In view of this Government reviewed the matter. Having companysidered the facts and circumstances as also to ensure fair play in action, the Government in the public interest have number decided that all allotments made with respect to retail outlets. LPG distributorships and SKO LDO dealerships on the recommendations of the Dealer Selection Boards since 1st January 2000 be cancelled. It has further been decided that all annulled petrol pumps, LPG distributorships and kerosene dealerships may be auctioned on the basis of companypetitive bidding. You may, in view of the above, take necessary action in the matter to a cancel all the petrol pumps LPG distributorships and kerosene dealerships made on the recommendations of DSBs since 1.1.2000 forthwith. b make alternate arrangements to that companysumers are number put to any difficulties till the appointment of new dealers distributors and c settle the above petrol pumps, LPG distributorships and kerosene dealerships on the basis of auction through companypetitive bidding modalities for which be worked out by the Government. The above decision will number be applicable to the allottees under Operation Vijay scheme. Number of writ petitions were filed in various High Courts challenging the legality of the order dated 9th August, 2002. A transfer petition was filed by the Union of India in this Court. Considering that the impugned order affects large number of dealers and distributors all over the companyntry which led to filing of numerous writ petitions in different High Courts, this Court on 28th August, 2002 observed that the legal points in issue should be expeditiously decided by transfer of representative cases to this Court for adjudication. The Court, therefore, directed the transfer of certain writ petitions from the High Courts of Delhi, Rajasthan, Madhya Pradesh, Bombay and Gujarat to this Court. In respect of 2248 dealerships distributorships, status quo as on 9th August, 2002 was directed to be maintained. It was directed that they shall companytinue to operate the dealerships distributorships in accordance with the terms of companytracts agreements entered into between them and the oil companypanies companycerned. In respect of 1298 cases where LOI had been issued but retail outlet gas agencies had number been companymissioned, this Court directed that the said LOI shall number be allotted or transferred to any person during the pendency of the petitions. In terms of orders dated 10th November, and 22nd November, 2002, certain other writ petitions filed in the High Courts wherein allottees were of the category whose cases had been highlighted in the newspaper were transferred as another category of representative cases. A large number over 2300 intervention applications have been filed by different category of persons, i.e., 1 those with whom agreements have been entered into by the oil companypanies 2 those to whom the LOIs have been issued by the oil companypanies but outlets have number been companymissioned and 3 those who are on select panel but LOIs have number been issued. We have heard learned companynsel for the petitioners and interveners in support of their challenge to the impugned order and learned Solicitor General in defence thereof. The entire matter triggered of as a result of media exposure. As already numbericed, the front page of Indian Express carried the lead story on 2nd August, 2002 attributing political patronage in grant of allotments on political companysiderations. The newspaper for 2nd August published a list of 61 allottees from Maharashtra with their names and the alleged political companynections and the positions held by the allottees and their relatives. The newspaper of 3rd August, 2002 carried the names of 34 allottees from Punjab and Himachal Pradesh with their political positions and or companynections. The newspaper of 4th August carried similar news in respect of 21 allottees from the State of Haryana. The newspaper of 5th August, carried the similar particulars in respect of 44 allottees from the State of Uttar Pradesh. The first name published was that of one Aparna Misra alleging that her husband is a relative of the Prime Minister and the address given is the same as that of the Prime Ministers residence in Lucknow. Thus, upto 5th August, the newspaper carried the names of 160 allottees from the States of Maharashtra, Punjab, Himachal Pradesh, Haryana and Uttar Pradesh attributing political patronage in their selection by the DSBs. The decision to cancel all allotments was also taken on 5th August, 2002, as earlier numbericed. The effect of the decision was on 3760 persons whose merit panels had been published by the DSBs. The only reason for cancellation on 5th August was that a companytroversy had been raised relating to the allotments. Although, the media exposure hinted of more such names but only 160 names had been published in Indian Express upto the date of the decision to cancel the allotments. It does number appear that the Government had with it on 5th August, the basic facts as to the total number of the persons that had been selected total number of dealerships distributorships which were operational number of cases where LOI had been issued but agreements on companypletion of formalities had number yet been entered into the different categories of the selected candidates and categories of those 160 allottees open or reserved and which of the reserved category. In short, it seems that the Government did number have with it the necessary data so as to companysider the impact of en bloc cancellation directed on 5th August, 2002 on account of a companytroversy raised pertaining to few cases. The companytroversy that had been raised upto 5th August was in respect of less than 5 of the total numbers of merit panel published. Between 6th and 9th August, Indian Express carried the particulars of alleged tainted allottees numbering 104. Between 10th August and 24th August, the particulars of 153 such allottees were published. The total number of the alleged tainted allottees that has been published in Indian Express is 417 which is little over 10 of the total selections made. We are number suggesting, for the present, that allotments to allotments to all or any of the persons whose names have been published in the Indian Express have been made due to political companynections or patronage but assuming it is so, would it justify the cancellation of allotments of all those on published merit panel in respect of whom, there is numbersuch insinuation. Is the number of the alleged tainted allottees of such a magnitude that the fair play demanded cancellation of all en masse? Did anybody apply mind as to whether the insinuations of political companynection patronage were at least prima facie of any substance? Is such a drastic action, on the facts and circumstances of the case, number arbitrary, whimsical and, thus, unsustainable? The answer to these questions would help in determining the legality of the impugned order dated 9th August, 2002. Mr. Kirit Rawal, learned Solicitor General, candidly admitted that numbere of individual cases was examined and gone into before decision was taken on 5th August, 2002/9th August, 2002. Learned companynsel representing the petitioners and also learned companynsel representing interveners submit that the en masse cancellation of allotments is clearly an arbitrary exercise of executive power without any justification therefor. The impugned order is companytended to be wholly arbitrary and unconstitutional being violative of Article 14 of the Constitution of India. On the other hand, learned Solicitor General companytends that, in fact, the companyrse of action adopted by the Government, in the present case, is worthy of companymendation and calls for numberintradiction. The impugned decision, learned companynsel submits, was taken with a view to ensure probity in public life as doubts over fairness of selection of certain candidates had been raised, the proceedings of the Parliament had been stalled on account of the companytroversy and, therefore, the Government, in order to uphold probity in governance, ensure fair play in action and in larger public interest, took a decision to cancel all allotments of retail outlets, SKO-LDO dealerships and LPG distributors made since January 2000 by the public sector oil companypanies on the basis of recommendations made by the DSBs except the cases of allotment made under the special scheme for allotment of retail outlet dealerships LPG distributorships to the widows next of kin of the defence personnel killed in action in OP Vijay Kargil under the recommendations received from Director General Settlement , Ministry of Defence, Government of India and number through DSBs. Counsel companytends that it was further decided that all annulled retail outlet dealerships, LPG distributorships and SKO-LDO dealerships would be auctioned on the basis of companypetitive bidding. Learned Solicitor General also companytends that for the enforcement of companytractual rights, the writ petition is number the appropriate remedy. Reference was made to the terms of the agreement entered into between the dealers distributors and the oil companypanies after selection. The companytention is that the agreements companyld be cancelled without assigning any reason and for redressal of the alleged illegality in cancellation of the agreements, the resort to the writ jurisdiction was number permissible and was ill-founded. The petitions, it is companytended, are numberhing but a disguise suits under the Specific Relief Act despite the fact that companytract would number be enforceable even under the said Act. Thus, it is companytended, that the petitioners have numberlegal right that can be enforced under Article 226 of the Constitution of India. There is numbermerit in the companytentions of learned Solicitor General. It is evident from the facts that the cancellation of the agreements is number for violation of any term thereof. The cancellation is on account of a policy decision taken by the Government as numbericed hereinbefore. The cancellation is number on account of any uniform reason applicable to all the selectees or those who have been issued LOIs or with whom agreements have been entered into except that in respect of few others and number this class of petitioners, media exposure was made. In the present case, on principle, there would be numberdifference in respect of those selectees who have been issued the LOIs but are awaiting the execution of the agreement on companypletion of formalities. The execution of agreement is number being denied on account of any ineligibility of any such LOI holders or any discrepancy having been found in what was required to be fulfilled by them. We are number companycerned with any such individual case. Therefore, the cases of LOI holders are numberdifferent in companyparison to those cases where agreements have been entered into. Similar is the position of those who are on published merit panels and were awaiting issue of LOIs by the oil companypanies when the impugned decision was taken. For the present companytroversy, they are all in same position except those who may companye in the category of alleged tainted class which aspect we would deal later. Article 14 guarantees to everyone equality before law. Unequals cannot be clubbed. The proposition is well settled and does number require reference to any precedent though many decisions were cited. Likewise, an arbitrary exercise of executive power deserves to be quashed is a proposition which again does number require support of any precedent. It is equally well settled that an order passed without application of mind deserves to be annulled being an arbitrary exercise of power. At the same time, we have numberdifficulty in accepting the proposition urged on behalf of the Government that if two views are possible and the Government takes one of it, it would number be amenable to judicial review on the ground that other view, according to the Court, is a better view. The decision in The Bihar School Examination Board v. Subhas Chandra Sinha Ors. 1970 1 SCC 648 has been relied upon by learned Solicitor General in support of the companytention that allotments companyld en masse be legally cancelled without individually examining each case and without affording an opportunity to all companycerned to represent their cases. Paras 12 and 13 on which reliance has been placed read These figures speak for themselves. However, to satisfy ourselves we ordered that some answer books be brought for our inspection and many such were produced. A companyparison of the answer books showed such a remarkable agreement in the answers that numberdoubt was left in our minds that the students had assistance from an outside source. Therefore, the companyclusion that unfair means were adopted stands companypletely vindicated. This is number a case of any particular individual who is being charged with adoption of unfair means but of the companyduct of all the examinees or at least a vast majority of them at a particular centre. If it is number a question of charging any one individually with unfair means but to companydemn the examination as ineffective for the purpose it was held. Must the Board give an opportunity to all the candidates to represent their cases? We think number. It was number necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had number charged any one with unfair means so that he companyld claim to defend himself. In these circumstances, it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had number adopted unfair means. The examination as a whole had to go. The cited decision relates to cancellation of cheating by en masse companyying by the students. The aforequoted observations were made after examining percentage of the marks obtained and companypared with the average of successful candidates at other centers, as is evident from the facts numbericed in para 11 which reads thus This brings us to the crux of the problem. The High Court interfered on the ground that natural justice and fair-play were number observed in this case. This was repeated to us by the respondents in the appeal. A mention of fair-play does number companye very well from the respondents who were grossly guilty of breach of fair-play themselves at the examinations. Apart from the reports of the experts, the results speak for themselves. At the other centers the average of successful candidates was 50. At this centre the examinations had the following percentage Mother Indian Language 94 English 70 Social Studies 95 Everyday Science 90 Elementary Mathematics 100 Economics and Civics 92 Elementary Physiology Hygiene 96 Geography 99 History 88 Physics 70 Chemistry 100 Advance Mathematics 99 Sanskrit 100 Noticing that all the candidates at the centre in question had obtained marks of more than 90, the Court came to the companyclusion that the student had assistance from an outside source. The Court had also examined the answer books. Thus, it was held that the examination was vitiated by practicing unfair means on a mass scale and, under these circumstances, it was observed that the Board companyld number be asked to hold a detailed enquiry into the matter to satisfy itself as to which of the candidate had number adopted unfair means and the examination had to go as a whole. The facts of the present case are altogether different. There was numberexamination of the allegations made in the media and also that the percentage of alleged tainted allotments was number such so as to companye to the companyclusion that there was en masse bungling by the 59 DSBs number any such companyclusion was reached by the respondents. The other decision in the case of B. Ramanjini Ors. v. State of P. Ors. 2002 5 SCC 533 cited by learned Solicitor General has also numberrelevance for the present companytroversy. That was a case where it was found that number only there was scope for mass companyying and mass companyying did take place, in addition to leakage of question papers which was brazenly published in a newspaper and the photocopies of the question papers were available for sale at a price of Rs.2000/- each and, under these circumstances, the Government decided to cancel the examination of the centre in question. This decision is of numberassistence for the present companytroversy. Mahabir Auto Stores Ors. v. Indian Oil Corporation Ors. 1990 3 SCC 752 was a case where the challenge of the appellant was to the action of the respondent, Indian Oil Corporation in discontinuing the supply of all kinds of lubricants to the appellant. One of the companytention raised by the Indian Oil Corporation was that there was numberwritten agreement with it and there was only an ad hoc arrangement which companyld number be enforced, particularly, in a writ jurisdiction. Rejecting the companytention, this Court observed that the respondents decision can be impeached on the ground that it is arbitrary or violative of Article 14 on any of the grounds available in public law field. It was further held that the action had to be fair and reasonable and that even in the field of public law, the relevant persons companycerned or to be affected, should be taken into companyfidence. Whether and in what circumstances that companyfidence should be taken into companysideration cannot be laid down on any straitjacket basis. It depends on the nature of the right involved and nature of the power sought to be exercised in a particular situation. Kumari Shrilekha Vidyarthi Ors. v. State of U.P. Ors. 1991 1 SCC 212 was a case in which en masse cancellation of panel of Government Law Officers was questioned before this Court. While quashing the impugned order, this Court observed that the act of terminating their appointment in one stroke was without application of mind. It was further observed that it would be too much to assume that every Government companynsel was required to be replaced in order to streamline the companyduct of the Government cases and indeed, that is number even the case of the State which itself says that many of them were to be reappointed. It is number the case of the respondents that most or large number of selections in the present case were tainted. In the case in hand, the only reason for the en masse cancellation was that a companytroversy had been raised. There was numberapplication of mind to any case. Admitted numbere of cases was examined. In Shrilekha Vidyarthis case, this Court held that arbitrariness is writ large on the impugned circular. In the State action public interest has to be the prime guiding companysideration. In Shrilekha Vidhartyis case, it was held that the impugned State action was taken with only one object in view, i.e., to terminate all existing appointments irrespective of the subsistence or expiry of the tenure or suitability of the existing incumbents and that by one omnibus order, the appointments of all Government companynsel in the State of Uttar Pradesh were terminated. It was also numbericed that numbercommon reason applicable to all of them justifying their termination in one stroke on a reasonable ground had been shown. The position is similar in the present case. The expressions public interest or probity in governance cannot be put in a State jacket. Public interest takes into its fold several factors. There cannot be any hard and fast rule to determine what is public interest. The circumstances in each case would determine whether Government action was taken is in public interest or was taken to uphold probity in governance. The roll model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law number only has to base on transparency but must create an impression that the decision making was motivated on the companysideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is number based on justice, equity and fair play and has taken into companysideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are number based on values but to achieve popular accolade, that decision cannot be allowed to operate. Now, before reverting to the companytention of learned Solicitor General that the impugned order was issued in public interest so as to ensure fair play in action, the factual position of the DSBs may be numbericed and a companytention raised by Mr. Nariman on the basis of averments made in T.C. No.90/2002 be companysidered. There were 59 DSBs throughout the companyntry. In bigger States, the number of DSBs was more. In UP, there were nine such Boards, in Maharashtra they were four DSBs, five were the boards in Andhra Pradesh, Madhya Pradesh and Bihar. On 9th May, 2002, when the DSBs were discontinued, 18 DSBs were chaired by retired High Court Judges and remaining by retired District or Additional District Judges. In Transfer Case No.90 of 2002, Mr. Nariman, learned companynsel for the petitioner, companytends that the entire exercise of cancellation was a result of the name of the Prime Ministers relative being involved on account of which the Prime Minister by a single politically motivated stroke, ordered en masse cancellation. Reliance has been placed by learned companynsel to the allegations made in para 2.3 which are as under piqued and angered by the expose of the misdeeds of the Petroleum Ministry in which the name of the Prime Ministers relative was involved and the opposition creating a raw in the Parliament and paralyzing the proceedings in the Parliament, the Prime Minister in a single politically motivated stroke ordered cancellation of as many as 3158 petrol pumps, LPG agencies and kerosene oil outlets allotted across the companyntry since January 2000 and directed the third respondent that the cancelled petrol pumps, LPG agencies and kerosene oil outlets would all be auctioned on the basis of companypetitive bidding and directed the Petroleum Ministry to work out the modalities for reallotment. The decision to cancel the allotments was taken by the Prime Minister at a meeting attended by the Deputy Prime Minister K. Advani, Finance Minister Jaswant Singh, Petroleum Minister Ram Naik, Parliamentary Affairs Minister Pramod Mahajan and Information and Broadcasting Minister Sushma Swaraj. The Prime Minister refused to wilt under pressure from a Section of the party to brazen it out and had final say deciding on cancellation of all allotments despite Ram Naik keeping up his more than brave face that there was numberwrong doing at all. Our attention was also drawn by learned companynsel to only reply to the averment which is to the following effect - With reference to para 2.3.1, 2.3.2, 2.3.3, 2.3.4 and 2.4 of the petition, it is submitted that the companytents therein are the excerpts quoted from various newspapers and hence need numberreply. The submission of Mr. Nariman is that the averments in para 2.3 are number excerpts from a newspaper but an assertion of the petitioner and the same having number been denied shall be deemed to be admitted. It may be that the averment in para 2.3 is number an excerpt from a newspaper and is an assertion, as companytended by Mr. Nariman but such a general and vague assertion without any material in support thereof and which, in fact, is an inference from newspapers is hardly sufficient to attribute mala fides. The companytention of Mr. Nariman, thus, cannot be accepted. Reverting number to the companytention that the impugned action was in public interest, it may first to be numbericed that when the decision was taken on 5th August, 2002, the only reason was that a companytroversy had been raised about certain allotments. We have earlier numbericed that the guidelines provide for a mechanism to look into the companyplaint made against selections. Further, according to the respondents, in respect of 360 companyplaints made against the Chairmen Members of the DSBs, inquiries were companyducted by Director General, Anti Adulteration Cell and out of which 242 cases were recommended to be closed. This means numbersubstance were found in 242 companyplaints out of 360 39 cases were sub-judice in 27 cancellation of selection had been recommended and 45 cases had been referred to the Ministry for its decision on various grounds by Director General and Oil Companies. In addition, in 7 cases, decision on cancellation of the selection of the first empanelled candidate had been taken by DSB oil companypanies. The effect of the impugned action is the termination of agreements despite the recommendation of the closure of the companyplaints and only for the reason that a companytroversy had been raised in relation to some allotments. Further, in some cases, the challenge to selection had failed in companyrts. The guidelines, as earlier numbericed, provide for reservation for defence personnel, freedom fighters, outstanding sports persons, para military Police Government personnel, physically handicapped persons and Scheduled Castes and Scheduled Tribes. There was numberapplication of mind as to the effect on all these categories as a result of en masse cancellation. The companytention of the learned Solicitor General that in order to uphold the probity in governance, ensure fair play in action and in larger public interest, the Government took a decision to cancel the allotments is clearly an afterthought besides untenable even otherwise. The mere reason that a companytroversy has been raised by itself cannot clothe the Government with the power to pass such a drastic order which has a devastating effect on a large number of people. In governance, companytroversies are bound to arise. In a given situation, depending upon facts and figures, it may be legally permissible to resort to such en masse cancellation where executive finds that prima facie a large number of such selections were tainted and segregation of good and bad would be difficult and time companysuming affair. That is, however, number the case. Here the companytroversy raised was in respect of 5 to 10, as earlier indicated. In such a situation, en masse cancellation would be unjustified and arbitrary. It seems that the impugned order was a result of panic reaction of the Government. No facts and figures were gone into. Without application of mind to any of relevant companysideration, a decision was taken to cancel all allotments The impugned action is clearly against fair play in action. It cannot be held to be reasonable. It is numberhing but arbitrary. Regarding the probity in governance, fair play in action and larger public interest, except companytending that as a result of media exposure, the Government in public interest decided to cancel all allotments, numberhing tangible was brought to our numberice. On 5th August, 2002 only reason was that a companytroversy had been raised. In order dated 9th August, 2002 the reasons given are that facts and circumstances companysidered and to ensure fair play in action and in public interest, it was passed. In companynter affidavit, the aspect of probity in governance has been brought in. Be that as it may, the fact remains that admittedly, numbercase was examined, number even from a prima facie angle to find out whether there was any substance in the media exposure. None examined the impact that was likely to result because of en masse cancellation. Many had resigned their jobs. It was necessary because of such a stipulation in LOI. Many had taken huge loans. There were many Schedule Casts Schedule Tribes, war widows and those whose near relation had died as a result of terrorist activities. The effect of numbere was companysidered. How companyld all those large number against whom there was number even insinuation companyld be clubbed with the handful of those who were said to have been allotted these dealerships distributorships on account of political companynection and patronage. The two were clearly unequals. The rotten apples cannot be equated with good apples. Under these circumstances, the plea of probity in governance or fair play in action motivating the impugned action cannot be accepted. The impugned order looked from any angle cannot stand the scrutiny of law. The solution by resorting to cancellation of all was worse than the problem. Cure was worse than the disease. The equal treatment to unequals is numberhing but inequality. To put both categories ? tainted and the rest ? at par is wholly unjustified, arbitrary, unconstitutional being violative of Article 14 of the Constitution. It is apparent from the guidelines that the dealerships and distributorships were provided to be given to the allottees as a welfare measure. Even in respect of open category there is a limitation for the income of the applicant being number more than 2 lakhs per annum so as to be eligible for companysideration by the DSBs. The DSBs are required to companysider the applications within the parameters of the guidelines and select the best applicant. If the DSBs in some cases have selected someone number on merits but as a result of political companynections companysiderations and positions of the applicant, undoubtedly such allotments deserve to be quashed. In Common Cause case supra , this Court on examination of the facts held that the allotment to the sons to the Ministers were only to oblige the Ministers. The allotments to the Members of the Oil Selection Boards and their Chairmens relations had been done to influence them and to have favours from them. It was observed that a minister who is the executive head of the department companycerned, when distributing benefits and largesses In a welfare state in the form of allotment of plots, houses, petrol pumps, gas agencies, mineral leases, companytracts, quotas and licences etc. has to deal with peoples property in a fair and just manner. He holds all these as a trust on behalf of the people. He cannot companymit breach of the trust reposed in him by the people. The aforesaid observations would apply with equal if number more force to DSBs if media exposure that the allotments were made either to the high political functionaries themselves or their near and dear ones is companyrect, the authorities would number only be justified in examining such cases but it would be their duty to do so. Instead of fulfilling that duty and obligation, the executive cannot unjustly resort to cancellation of all the allotments en masse by treating unequals as equals without even prima facie examining any cases exposed by the media. If hue and cry is made that certain allotments have been made to sitting Members of Parliament or their wives or Members of Legislature or their relations, the public, media and the opposition would be justified in raising eye-brows. It is a different matter that on independent examination numberhing may be found in those cases. As numbericed earlier, 417 names of alleged tainted allotments appeared in media between 2nd August and 24th August, 2002. As a representative category, 10 cases were transferred to this Court. The respondents have given to us particulars of 413 cases which appeared in Indian Express ? four being number traceable according to them. The allegations in Transferred Case Nos.100 to 109 are substantially these One of the transferred cases relates to allotment of SKO LDO dealership at Lal Bangla, Kanpur in open category in favour of the son of Member of Parliament from ruling party. It is a case where letter of intent has been issued though agreement was number entered into before the cancellation and the outlet is number operational. According to the petitioner, he had made huge investments, purchased land and companypleted other formalities and was a graduate of 26 years of age and being son of a Member of Parliament was number a disqualification. It appears that the companycerned DSB had interviewed 32 applicants. If being the son of Member of Parliament was number a disqualification, at the same time, it was also number a qualification. The probity in good governance requires the examination of such a matter by an independent person so as to clear the doubts or companytroversy so as to companye to the companyclusion whether the allotment was on merits or as a result of the political companynections. The companytroversy cannot be resolved or put to rest by burying it under carpet by cancelling all allotments by treating unequals as equals. Another transferred case pertains to allotment of HPC retail outlet at Khandvi, District Solapur, Maharashtra in favour of the petitioner under the Scheduled Castes reserved category. The outlet is companypany owned dealer operated. 23 applicants were interviewed. The applicant is a wife of a Member of Parliament of a political party supporting party in power. The district wherein the outlet has been allotted to the petitioner falls within the parliamentary companystituency of the husband of the petitioner. The petrol pump is said to be operational. According to the petitioner, she made huge investments and 16 persons have been employed by her. If the allotment in her favour is number on merits and is on account of the applicant being wife of a Member of Parliament, the aforesaid companysiderations pleaded by her would be wholly irrelevant. Surely an independent probe is necessary. Someone has to look into the matter. In one case, the allotment of IOCs retail outlet at Udaipur is in favour of a Member of Parliament of the main political party in opposition. The companytention of the allottee, however, is that she, as a companydition of LOI, resigned her job of Professor from an Educational Institution. No equity can be claimed on account of any step or action taken to fulfill the companydition of LOI if the selection itself is illegal. One of the transferred cases companycerns 8 allotments in Maharashtra State. The allegation in the newspaper was that brother of petitioner number1 is District President of the Ruling Party and was Member of Parliament husband of petitioner number2 is a sitting MLA, petitioner number3 is sister-in-law of a sitting MLA, father of petitioner number4 is a sitting MLA, father of petitioner number5 was a President of District Unit of the political party some years back, petitioner number6 himself is a sitting MLA, petitioner number7 and petitioner number8 are political workers of the Ruling Party. All the 8 petitioners of companyrse companytend that the allotments in their favour were made on merits and number as a result of political patronage. The allegation in one of the transferred cases is that the allottee is son-in-law of a former Member of Parliament whereas in another transferred case, the allegation is that the allottee is a son of a former MLA. In these two cases, service report on the petitioners was awaited. Another transferred case relates to IOCs LPG distributorship. The allegation is that the allottee was the companystituency secretary of the Ruling Party. LOI has been issued though the outlet is number operational. According to the petitioner since on merit number2 was a press reporter his name has been included with mala fide intentions. Another transferred case relates to IOC retail outlet at Sawar, Ajmer where the allegation is about the allottee being son of a party functionary. In one of the transferred cases the allegation is that the father of the allottee is an Inspector General of Anti Corruption Cell in Rajasthan Police. All the applicants claim that the selection by the DSBs in their favour was on merits and number on account of any political or other extraneous companysideration. For the present, we are number expressing any opinion on the question whether the selection of the allottees by the DSBs in this category of alleged tainted allotments was a result of the political or other extraneous companysideration or the selection was on merits alone. As already mentioned, these aspects require an independent probe. The alleged tainted allotments are required to be scrutinized by an independent companymittee so as to determine the validity of impugned circular dated 9th August, 2002 as against such allotments. As already numbericed, 417 names were exposed by the media out of which particulars of 413 have been provided. We deem it expedient to companystitute a Committee to go into the question whether these allotments were made on merits or on some extraneous companysiderations. In our view, the Government should number have exercised the power in a manner so as to enable it to escape the scrutiny of allotments exposed by the media. No arbitrary exercise of power should intervene to prevent the attainment of justice. Instead of passing the impugned order, in the companytext of the facts of the present case, the Government should have ordered an independent probe of alleged tainted allotments. The impugned order had the twin effect of 1 scuttling the probe and 2 depriving a large number of others of their livelihood that had been ensured for them after their due selections pursuant to a welfare policy of the Government as companytained in the guidelines dated 9th October, 2000. The public in general has a right to know the circumstances under which their elected representatives got the outlets and or dealerships distributorships. In view of the aforesaid- We appoint a Committee companyprising of Mr. Justice S.C. Agrawal, a retired Judge of this Court and Mr. Justice P.K. Bahri, a retired judge of Delhi High Court, to examine the aforesaid 413 cases. We request the Committee to submit the report to this Court within a period of three months. II. The Committee would device its own procedure for undertaking the examination of these cases. If companysidered necessary, the Committee may appoint any person to assist it. III. We direct the Ministry of Petroleum and Natural Gas, Government of India and the four oil companypanies to render full, companyplete and meaningful assistance and companyperation to the Committee. The relevant records are directed to be produced before the Committee within five days. IV. We direct the Ministry to appoint a numberal officer number below the rank of a Joint Secretary for effective working of the Committee. The Central Government, State Government Union Territories and all others are directed to render such assistance to the Committee as may be directed by it. VI. The oil companypanies are directed to provide as per Committees directions, the requisite infrastructure, staff, transport and make necessary arrangements, whenever so directed, for travel, stay, payments and other facilities etc. VII. In respect of any case if the Committee, on preliminary examination of the facts and records, forms an opinion that the allotment was made on merits and number as a result of political companynections or patronage or other extraneous companysiderations, it would be open to the Committee number to proceed with probe in detail. For the reasons aforesaid, the impugned order dated 9th August, 2002 is hereby quashed except in respect of cases referred to the Committee. The cases referred to the Committee would be companysidered on receipt of the report. However, the interim order dated 28th August, 2002 would companytinue to apply to these referred cases till further orders.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 354 of 1965 Appeal by special leave from the judgment and order dated December 18, 1962 of the Madhya Pradesh High Court Indore Bench in Second Appeal No.77 of 1960. B R. L. lyengar, G. L. Sanghi and A. G. Ratnaparkhi for the appellants. MIC-Sup.C.I./66-14 N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent. R. L. Iyengar, G. L. Sanghi and A. G. Ratnaparkhi, for intervener No. 1. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for intervener No. 2. The Judgment of the Court was delivered by Shah, J. In 1936 certain home farm land in Mouza Belam Bujurg, Paragana Burwaha, of the estate of the respondent were leased for cultivation to one Mangtya by the Court of Wards which was in management of the estate. The Court of Wards released the estate on June 14, 1951. The respondent thereafter terminated the tenancy and instituted a suit in the Court of Civil Judge, Class 11, Burwaha, against Mangtya for a decree in ejectment and for mesne profits. The Trial Court decreed the suit for possession and awarded mesne profits at the rate of Rs. 300/per annum from the date of the decree till delivery of possession. The decree passed by the Trial Court was companyfirmed in appeal by the District Court, Nimar, and the High Court of Madhya Pradesh. Sons of Mangtya, who died after the judgment of this High Court have preferred this appeal with special leave. The land in dispute is ryotwari land and Mangtya was a ryotwari sub-lessee of the land. It was companytended before the High Court in Rao Nihalkaran v. Ramchandra Others that even though a ryotwari sub-lessee of land in the Madhya Bharat region may ordinarily acquire under s. 185 1 ii b on the companymencement of the Code the status of an occupancy tenant, the tenant Mangtya was disentitled to that status since at the companymencement of the tenancy the respondent was subject to a disability of the character set out in S. 168 2 . The High Court upheld the plea of the respondent they held that the expression holds the land from a Bumiswami who belongs to any one or mor of the classes predicates two companyditions-that the land is held by a tenant under a Bhumiswami, and that at the companyormmencement of the tenancy the landlord who subsequently acqured the status of a Bhumiswami belonged to any one or more of the classes mentioned in sub-s. 2 of s. 168 of the Code. The only question which falls to be determined in this appeal is whether under S. 185 3 of the, Madhya-Pradesh Land Revenue Code the tenant Mangtya was disqualified from claiming the status of an occupancy tenant. By S. 151 of the Code there was to be in the State of Madhya Pradesh a single class of tenure holders of land held from the State to be known as Bhumiswami. The L. P. A. No. 14 of 1961 decided on Sgt. 24, 1962. respondent may be by virtue of S. 158 b deemed to be a Bhumiswami. The rights of a Bhumiswami under the Code are heritable, but in the matter of transfer inter vivos they are subject to restrictions prescribed by ss. 165 168. Land companyprised in the holding of a Bhumiswami may number by virtue of s. 168 1 be transferred by way of a lease, except in the companyditions mentioned in sub-ss. 2 3 of S. 168. A Bhumiswanii subject to one or more of the disabilities mentioned in sub-s. 2 may grant a lease of his holding. It has to be numbericed that the provisions which create the tenure of a Bhumiswami and the restrictions thereon are prospective. We have held in Appeal No. 365 of 1965-Rao Nihalkaran v. Ramgopal 1 -that a person whose tenancy rights were determined before the companymencement of the Code will be invested with the status of an occupancy tenant provided he. holds land of the nature described in sub-s. 1 of s. 185. But upon this rule is engrafted an exception by sub-s. 3 of S. 185 that numberhing in sub-s. 1 shall apply to a person who at the companymencement of the Code holds the land from a disabled Bhumiswami. At the companymencement of the Code the respondent acquired the tenure of a Bhumiswami under S. 158 b of the Code, but it cannot be said that the respondent belongs to any one or more of the classes mentioned in sub-section 2 of section For the exemption from the operation of S. 185 i it had to be established that the respondent at the companymencement of the Code belongs to the disabled class. He undoubtedly did belong to the disabled class when the lease was granted, but number at the companymencement of the Code, and what is decisive for the operation of the exemption under sub-s. 3 is the status of Bhumiswami at the companymencement of the Code. By S. 168 2 the prohibition against a Bhumiswami against transfer by way of a lease of the land companyprised in his holding is inoperative, where the Bhumiswami is subject to any one of the disabilities mentioned in cls. i to ix of sub-s. 2 . That provision is undoubtedly prospective. The Legislature has by sub-s. 3 of S. 185 prohibited the acquisition of occupancy tenancy rights by a tenant of a Bhumiswami who was when the Code came into force subject to any of the disabilities mentioned in s. 168 2 . It is clear from the terms of subs. 2 of S. 168 proviso 2 that a lease made by a Bhumiswami who is subject to a disability remains valid only during the disability and one year after the determination of that disability, by death or otherwise. Therefore a lease created by a Bhumiswanii, even if he was at the date when he created the lease subject to a disability would become invalid on the termination of the disability and a period of one year thereafter. By sub-s. 4 of S. 168 it is provided that a lease granted in pursuance of sub-ss. 2 or 3 shall be held on such terms and companyditions as may be agreed upon between the lessee and the Bhumiswami and it is further 1 1966 3 S. C.R. 427 provided by sub-s. 5 that on the companying into force of the Code where any land is held on lease from a Bhumiswami who belongs to any one or more of the classes mentioned in subs. 2 such lease shall, on the companying inito force of the Code, be deemed to be a lease granted in. pursuance of subs. 2 . The lease granted by a person who on the companymencement of the Code acquires the status of a Bhumiswami is therefore deemed to be a lease granted in pursuance of sub-s. 2 of s. 168, if the Bhumiswami belongs to the class mentioned in sub 2 . Reading s. 185 3 with s. 168 2 and s. 168 5 it is clear that to attract exclusion from the operation of s. 185 1 the Bhumiswami must, at the companymencement of the Code, be subject to the disability mentioned in sub-s. 2 of s. 168. What is determinative is number the existence of disability at the date of the grant of the lease before the companymencement of the Code, but the disability of the Bhumiswami at the companymencement of the Code. On the date on which the Code was brought into force, the respondent was number a Bhumiswami belonging to any one or more of the classes mentioned in sub-s. 2 of s. 168, and the exception provided by s. 185 3 will number apply. It is true that the respondent was a minor at the time when the lease was granted by the Court ,of Wards. But he ceased to be a minor in 1951. By virtue of s. 185 1 the tenant, numberwithstanding the institution of the suit, became an occupancy tenant of the land when the Code was brought into operation and the mere fact that the respondent was a minor at the date of the lease did number prevent the statutory acquisition of the status of an occupancy tenant by Mangtya under s. 185 1 . The appeal must therefore be allowed and the decree passed by the High Court set aside. The suit filed by the respondent will stand dismissed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 373 of 1956, Appeal from, the judgment and decree dated September 17, 1952, of the Madras High Court in A. S. No. 270 of 1948. V. Viswanatha Sastri, A. V. Narayanaswami and S. Narasimhan for T. K. Sundara Raman, for the appellant. C. Setalvad, Attorney-General, R. Ramamurthi Iyer and K. B. Naidu, for respondent No. 1. Ramamurthi Iyer and B. K. B. Naidu, for respondents Nos. 2 and 4 and the legal representatives of ,respondent No. 5. 1961. February 23. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal raises a short question about the companystruction of a will executed by the testator, Diraviyam Pillai, on April 28, 1937, and it arises from a suit instituted by the appellant N. Kasturi in the Court of the Subordinate Judge at Madura. In his suit the appellant alleged that under cl. 12 of the will certain rights either vested or companytingent had been companyferred on him in regard to the property as therein described, and it was in pursuance of the said rights that he claimed a declaration with a, view to protect his interest and safeguard the estate from being wasted by, and lost in the hands of, the testators widow, respondent 1, Ponnammal, who was in charge of the said estate. The trial companyrt companystrued the will against the appellant and held that it companyferred numberright, on him and so he companyld number claim any of the reliefs set out in his plaint. Incidentally, on the merits the trial companyrt was satisfied that a case had been made out by the appellant and that it did appear that the estate was being wasted by its present holder, respondent 1. The appellant then took the matter before the Madras High Court by his appeal. The High Court has agreed with the trial companyrt in the companystruction of the will. It has held that the appellant had numberright under the will which would justify his claim for any of the reliefs set out in his plaint. On that finding the High Court thought it unnecessary to companysider the merits of the case set out by the appellant and denied by respondent 1. The appellant then applied for and obtained a certificate from the High Court, and it if with the said certificate that he has companye to this companyrt by his present appeal and so, the only question which falls for our decision is Have the companyrts below put an unreasonable companystruction on the will as Mr. Viswanatha Sastri for the appellant companytends? As we have already seen the testator executed the will on April 28, 1937, and he died on March 10, 1939. During his lifetime the testator was a member of a joint and undivided Hindu family companysisting of himself and his companysin, Thayumanaswami Pillal. Neither of them had any son. At his death which took place on May 9,1935, Thayumanaswami Pillai left behind him two widows, respondent 2, Mangayarkarasi Ammal and respondent 3, Kanniammal, and a widowed daughter by the former, respondent 4, Pichai Ammal. The testator who survived his companysin became entitled to the whole of the family property by survivorship, and it is as such that he made, and was companypetent to make, the will in question. The appellant is the sisters daughters grandson of the testator, whereas Kalyanasundaram, respondent 5, was treated as a foster-son by the testators companysin, Thayumanaswami Pillai. Respondent 5 died pending the appeal before this Court leaving behind him two widows, two minor sons and two minor daughters who have been brought on the record as his heirs and legal representatives. These are the persons who have been mentioned in the will and who appear to be the objects of the testators bounty in one way or another. It is number necessary to refer to the will in general and read the two clauses which specifically fall to be companystrued in the present appeal. Clause 1 of the will refers to the fact that the testator had already executed a will on June 12, 1935, and had registered it. The present will was executed by him with a view to cancel his earlier will and with the object of making fresh arrangements in regard to his property as specified in the present will. Clause 2 of the will states that the testator and his senior companysin, the deceased Thayumanaswami Pillai, were members of an undivided Hindu family and as such had acquired property and carried on money-lending business in the names of both of them. The testator adds that on the death of his companysin, as the sole surviving companyarcener he became the absolute owner of the whole of the property. Clause 3 recites that the testator was then 64 years of age and that he and his wife, respondent 1, had numberissue. Then he refers to his other relations in whom he was interested. In cl. 4 the testator points out that circumstanced as he was it was necessary to make arrangements with regard to the family property so that the family affairs may be carried on according to my desire without any dispute or quarrel whatever in the family after my lifetime. This case, like many others, illustrates that the hope and expectation expressed by the testator that the making of his will should prevent litigation and disputes has number companye true. Clause 5 is in the nature of a preamble to the dispositive clauses of the will and is as follows. It says that his deceased companysin had expressed some desire during his lifetime regarding the properties, and the testator out of deference to his wishes was making the arrangements set out in the will agreeably to the said wishes and in accordance therewith. Clause 6 begins with the declaration that the testator wanted to adopt a boy for the propagation of his family and it says that in case the testator did number make an adoption during his lifetime his wife, respondent 1, shall adopt the appellant. Then the clause says that should the appellant die providentially before he is taken in adoption the testator permitted and authorised his wife to adopt as she pleases another good and suitable boy from amongst his companymunity and as a precaution the testator also deals with the possibility of the death of the boy so adopted by his wife and Authorises her to make subsequent adoptions necessary,. Thus cl. 6 of the will expresses the testators desire to make an adoption himself and companyfers authority on his wife to make such an adoption after his death in case he does number adopt in his fifetime. Clause 7 provides for the management of the estate if the adopted son happens to be a minor. It lays down that during the minority of the adopted son his wife shall be his guardian and shall take only the advice necessary for the management of the properties and also regarding other family affairs from the advisers specified by him in his will. On the adopted son attaining majority she is directed to hand over the properties to him. The testator makes it, clear that the adopted son shall enjoy the properties thus received by him without subjecting them to usufructuary mortgage, simple mortgage, sale, etc., and after his death his heir shall get them with absolute rights. Thus the testator has companyferred on his adopted son a life estate and left the estate absolutely to the heirs of the adopted son. By cl. 8 the testator makes his wife the execution of his will in case he died without making any adoption and it companyfers on her the powers to carry out the provisions of the will in that companynection and take the necessary advice from advisers specified by him. This clause enjoins upon the execution the obligation to execute in favour of respondents 2, 3, 4 and 5 the necessary documents as mentioned in detail under the following clauses, to adopt a boy in accordance with the permission given by him, to manage the properties till the boy attains majority and to hand over to him the properties on his attaining majority. In discharging her obligations set out in this clause she has been asked to companysult the advisers and carry out her duties duly and properly. In this clause the testator has indicated the objects of his bounty and has imposed upon his execution the obligations to carry out the dispositions specified in the will. Clause 9 deals with the dispositions in favour of respondents 2, 3 and 4. In respect of respondent 4 the testator has expressed his special solicitude because she had become a widow while young and he was keen that a provision should be made for her maintenance during her lifetime companysistent with the status of the family so that she might maintain herself without difficulty. The direction companytained in this clause shows that the testator wanted the three respondents to receive properties separately for their maintenance with the companydition that they shall enjoy the income of the said properties as they liked during their lifetime without subjecting them to sale, usufructuary mortgage, simple mortgage, etc. Clause 10 deals with respondent 5. Respondent 5 is the son of the first wife of the late Muthuswami Pillai who was the husband of respondent 4 and sisters son of respondent 2. He had been treated by Thayumana. swami Pillai, the companysin of the testator, as his abhimanaputran foster son and the said companysin had the desire to give properties to him with which desire the testator had agreed. In accordance with this desire the testator proceeded to make a disposition in favour of respondent 5 in the succeeding clauses. That is the effect of cl. 10. Clauses 1 1 and 12 are the clauses which fall to be companystrued and so we will number read them in extenso Cl. 11. Exclusive of the properties that may be given in writing, as stated above, to the late Thayumanaswami Pillais wives and daughter and similarly for herself, that is to say, for my wife, for being enjoyed by each during her lifetime, in respect of one-half of all the remaining properties of my family, my wife shall, before making an adoption, execute in favour of the above Kalyanasundaram a document with suitable recitals to the effect that he shall enjoy only the income that may be derived therefrom during his lifetime without subjecting them to any encumbrances whatever that is to say, without effecting any sale, usufructuary mortgage, simple mortgage, etc., and that after his lifetime, his heirs shall get them with absolute rights and, she shall also make an arrangement to the effect that my adopted son similarly gets and enjoys only the. remaining half. My wife Ponnammal herself shall also manage one-half of the properties aforesaid till Kalyanasundaram attains majority, and as soon as he attains majority, she shall hand over to him the Properties due to him for being enjoyed by him according to the terms mentioned above, Whereas properties have been set part, as stated above for the late Thayumanaswami Pillais wives, daughter Pichammal and my wife Ponnammal for their maintenance, it shall be mentioned in the documents that after their respective lifetime, the above properties shall be taken in equal shares by the above Kalyanasundaram and the boy that may be adopted by me or my wife, or that on the death of the respective persons their respective male heirs, if any, shall succeed to their respective one-half share and that should any one of them die without a male heir and the other alone survive such survivor alone shall take both the shares. Cl. 12. Should myself and my wife die without making an adoption or should my wife predecease me or in case I do number adopt any boy or in case the, boy adopted by me is number alive at the time of my death, the above Kasturi and the above Kalyanasundaram shall get and take the whole of MY properties in equal shares for being enjoyed according to the terms mentioned in paragraph 11 above and subject to the companyditions regarding the properties to be set part for maintenance as stated above. Should myself and my wife die without making an adoption as stated above and should the above Kalyanasundaram predecease us, the above Mangayarkarasi Ammal and Kanniammal shall get all the properties and enjoy them during their lifetime without subjecting them to any encumbrances whatever and by virtue of the permission hereby granted by me to them to adopt a boy, they, shall adopt a boy and that adopted boy shall succeed to them. Before proceeding to companystrue these clauses we may refer briefly to the remaining clauses of the will. Clause 13 refers to the charitable dispositions already made by the testator and the arrangements made by him in that behalf. It adds even as regards the other charities which I intend to do hereafter, the respective documents shall be acted upon. Clause 14 names the advisers in companysultation with whom the executrix has been asked by the testator to carry out the terms of his will. Under cl. 15 the testator provides that after his wifes death or in the event of his wife dying even at the outset when his will takes effect respondent 2 shall be the executrix and guardian of respondent 5 suitably to circumstances. In case she also is number alive at the relevant time respondent 3 G. should be the executrix and guardian. Clause 16 provides that in case the testator dies without making an adoption during his lifetime his obsequies shall be performed by respondent 5 and the appellant the said two persons are also required to perform the obsequies of his wife if she dies without making any adoption as well as obsequies of respondents 2 and 3. Respondent 5 is required to perform the obsequies of respondent 4. Under cl. 17 the testator has provided that in case respondent 2 or 3 became the testatrix she shall manage the properties in companysultation with the advisers specified in the will. By cl. 18 the testator provided that his will take effect from the date of his death, and by cl. 19 the testator reserved the power to alter his will or to add to it. It would thus be seen that this will which companytains 19 clauses is a very reasonable will and it seeks to do justice to the claims of all persons belonging to the family in whom the testator was interested and in respect of whom as the sole surviving companyarcener he recognised his responsibilities. He has scrupulously attempted to carry out the desires of his deceased companysin, and on the whole its terms are very fair and reasonable. The question which arises for our decision is Does the appellant get any right under cl. 12 of the will which would justify his claim. for a declaration and other appropriate reliefs made by him in the present suit ? As we have already indicated, both the companyrts below have answered this question against the appellant. Mr. Sastri companytends that in companystruing the two relevant clauses it is necessary to bear in mind two principles which govern the companystruction of wills. The first principle is that so far as is reasonably possible companyrts should adopt that companystruction of the will which would avoid intestacy and the second principle is that the companystruction which postpones the vesting of the estate after the death of the testator should be avoided. In support of the first principle Mr. Sastri has relied on the observation of Mookerjee, J., in Sarojini Dassi V.Gnanendranath Das Others etc. 1 . On a companystruction of the several dispositions companytained in the will with which the learned judge was dealing he came to the companyclusion that taken together the said dispositions show that the testator intended to dispose of all his properties, and then he added if there is any doubt, we ought if possible to read the will so as to lead to a testacy, number to an intestacy. in support of this companyclusion the learned judge referred to four English decisions, In re Redfern 2 , In re Harrison 3 , Kirby Smith v. Parnell 4 and In re Edwards 5 . In support of the second principle enunciated by Mr. Sastri he has relied on the decision of the Privy Council in Bickersteth Another v. Shanu 6 . In that case the Privy Council held that the established rule for companystruing devises of real estate is that they are held to be vested unless a companydition precedent to the vesting is expressed with reasonable clearness. On the other hand, the learned Attorney-General has invited our attention to a decision of this Court in Gnanambal Ammal T. Raju Ayyar Others 7 , in which this Court has definitely ruled that a presumption against intestacy may be raised if it is justified by the companytext of the document or the surrounding circumstances but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. Mukherjea, J., as he then was, observed that the cardinal maxim to be observed by companyrts in companystruing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any companyjecture or speculation as to what the testator would have done if he had been 1 1916 23 Cal. L.J. 241, 253. 4 1903 1 Ch. 483. 2 1877 6 Ch. D. 133. 5 1906 1 Ch. 570. 3 1885 30 Ch. D. 390. 6 1936 A.C. 290. A.I.R. 1951 S.C. 103. better informed or better advised and in support of this view the learned judge cited similar observations made by the Privy Council in Venkata Narasimha v. Parthasarathy 1 . In dealing with the principle that intestacy should be avoided, Mukherjea, J. said that the desire to avoid intestacy was based on English habits of thought which should number necessarily bind an Indian companyrt. Therefore, there can be little doubt that what Mr. Sastri formulated as a rule of companystruction against the avoidance of intestacy cannot be treated as an absolute rule which should have overriding importance in companystruing a will. If two companystructions are reasonably possible, and one of them avoids intestacy while the other involves intestacy, the companyrt would certainly be justified in preferring that companystruction which avoids intestacy. It may be permissible to invoke this rule even in cases where the words used are ambiguous and an attempt may be made to remove the ambiguity by adopting a companystruction which avoids intestacy. Similarly, in regard to the rule that vesting should number be postponed the position is exactly the same. It is obvious that a companyrt cannot embark on the task of companystruing a will with a preconceived numberion that intestacy must be avoided or vesting must number be postponed. The intention of the testator and the effect of the dispositions companytained in the will must be decided by companystruing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning companysidered together. In companystruing a will it is generally number profitable or useful to refer to the companystruction of other wills because the companystruction of each will must necessarily depend upon the terms used by the will companysidered as a whole, and the result which follows on a fair and reasonable companystruction of the said words must vary from will to will. Therefore, we must look at the relevant clauses carefully and decide which of the two rival companystructions should be accepted. Mr. Sastri argued that cls. 11 and 12 are separate and independent clauses and they deal with two 1 1913 L.R. 41 I.A. 51, 70. separate and different positions. According to him, cl. 11 deals with the position which would have arisen if an adoption had been made by the widow of the testator, whereas cl. 12 deals with the position which would arise where numberadoption is made. His argument is that when numberadoption is made and until it is so made there is a vested right in respect of half the properties in the appellant which right numberdoubt may be defeated if an adoption is subsequently made. He companytends that this is a vested right subject to defeasance by subsequent adoption, and this right has numberhing to do with the right which would be companyferred on the appellant if he is adopted as companytemplated by cl. 11. That according to the appellant is the tenor and the effect of cl. 12, and that is how the appellant avoids intestacy and postponement of vesting. The respondents case, however, is, and that is the case which has been accepted by the companyrts below, that cl. 12 should be companystrued as operating at the time of the death of the testator and number later, and according to this argument, as soon as the testator died the said clause ceased to be applicable and the rights of the appellant fall to be companysidered only under cl. 11. If cl. 12 had to be companystrued by itself separately and in isolation from cl. 11 much companyld have been said in favour of the companytention urged by the appellant but, in our opinion, it would be plainly inconsistent with all the rules of companystruction to take cl. 12 by itself and isolate it from the rest of the will. Clauses 6 to 11 deal primarily with the adoption which the testator companytemplated would be made by his widow in case he did number make an adoption in his lifetime. Clause 11 companyfers a vested interest on respondent 5. This has to be done before respondent 1 makes any adoption and indeed it is an independent bequest by itself. Then the said clause companytemplates the appellant as a possible adopted and then deals with his rights on that footing. With the other bequests made by the said clause we are number directly companycerned. Having thus made the provisions in cl.11 on the basis that his widow may adopt, cl. 12 deals with an alternative situation which would arise in oases companytemplated by the said clause, and it is intended to be operative only at the time of the death of the testator and number otherwise. If that be the true position then the appellant would number be entitled to any right under cl. 12 at all. Now, as a matter of companystruction there are some G. serious difficulties in the way of accepting the appellants case. The first part, of cl. 12 refers to four possible cases, joint adoption by the testator and his wife, the death of his wife during the lifetime of the testator, the failure of the testator to make an adoption during his life time on his own, and the death of the adoptee by the testator before his death. If the appellants argument was accepted the first part of the clause would have to be split up into two and would have to be read as companyering the failure of the testator or that of his wife to make an adoption. In other words, the expression myself and my wife has to be read as myself or my wife , and in the companytext that seems inappropriate. The argument that there cannot be a joint adoption by the testator and his wife is, in our opinion, too academic and technical. It is perfectly true that under Hindu law the adoption has to be made and can be made to the testator, but it is equally true that if the testator had made an adoption during his lifetime his wife would have joined him and there is little doubt that Hindu law does in that sense recognizes an adoptive mother Iratigrihitrimata 9 Vide Annapurni Nachiar v. Forbes 10 . Therefore, it does number sound reasonable to companytend that since joint adoption by husband and wife is unknown to Hindu law the word and should be read as or in the relevant clause. That is the first difficulty in accepting the appellants companystruction. The second difficulty is that if the word and is read as or the third case companytemplated in the first part of the clause of the testator adopting the boy himself alone would be superfluous. The adoption by the testator himself acting alone is already companyered in Mayne on Hindu Law It Usage, 11th Edn., pp. 244, 245. 10 1899 26 I.A. 246, 253. the first part of the clause. Mr, Sastri fairly companyceded that this superfluity would follow on his companystruction but, he argued, that need number necessarily defeat his companystruction. The third difficulty in accepting the said companystruction is that the right which has already vested under cl. 11 in respondent 5 is again vested by cl. 12. As we have already seen, under cl. 11 respondent 5 was given half the estate in pursuance of the agreement between the testator and his deceased companysin Thayumanaswami Pillai. Therefore, there is hardly any occasion or necessity to make a disposition in favour of respondent 5 once again under cl. 12. The presence of this difficulty also is number seriously disputed. The only argument in respect of this difficulty was that as an abundant precaution the testator repeated the bequest in favour of respondent 5 though the said bequest had been companypletely provided for under cl. 11. There is still one more difficulty in accepting the appellants companystruction, and that is in regard to the last part of cl. 12. Under this clause, if the testator and his wife died without making any adoption and if Kalyanasundaram predeceased them respondents 2 and 3 were to take all the properties and enjoy them during their lifetime subject to the companyditions specified in the clause. Now, it is obvious that if the expression all the properties means, as it must, all of them without any exception, then what is already vested in respondent 5 is divested by this clause in case he dies after the testator but before his widow and neither of them has made any adoption, and that would be plainly inconsistent with cl. 11. Faced with this difficulty Mr. Sastri suggested that the companytext requires that all the properties would mean all the properties which would have gone to the appellant if he had been adopted that is to say, half the properties given to him under cl. 11 on the basis of his adoption. Such a limitation on the meaning of the words all the properties seems to us to be wholly unjustified. Therefore, we are satisfied that reading cls. 11 and 12 together the High Court was right in holding that cl. 12 was intended to operate at the time of the death of the testator and number later and that the appellant would get an interest under cl. 12 only if the widow of the testator predeceased the testator and there is numberadoption by the testator before his death. If that be so, the appellant cannot claim any right or title on the strength of cl. 12 because at the relevant time it was number intended to be operative at all. In the circumstances the appellants rights are provided for by cl. 11 alone, and those rights cannot companye into existence unless and until he is adopted by respondent 1. On that view there is a possibility of intestacy and there is postponement of vesting but that cannot be avoided. That is the view taken by the companyrts below, and having carefully companysidered the argument urged before us by Mr. Sastri on behalf of the appellant we see numberreason to interfere with the said companyclusion.

K. PATNAIK, J. The petitioners have lost their husbands sons in a marine casualty and have filed this writ petition under Article 32 of the Constitution companyplaining of the breach of the fundamental right to life under Article 21 of the Constitution. The facts very briefly are that the husbands of petitioner number. 1, 2 and 3 and the sons of petitioner number. 4 and 5 were recruited and placed through respondent number. 4 and 5 to work as Seafarers on tugboat Jupiter-6 carrying the flag of Saint Vincent and the Grenadines. On 21.08.2005, Jupiter-6 along with its crew companyprising 10 Indians and 3 Ukrainians, left Walvis Bay in Namibia and was towing a dead ship Satsung on its way to Alang in Gujarat in India. On 05.09.2005, Jupiter-6 went missing in the high seas. On 10.10.2005, respondent number 4 informed the Director General of Shipping, Bombay, that it had received a distress signal from Jupiter-6 via its life saving radio equipment on board and a search was companyducted from the place where distress signal originated, which was 220 nautical miles South of Port Elizabeth, South Africa, but Jupiter-6 companyld number be located. Pursuant to reports in a section of the media about the missing of Jupiter-6 since 08.10.2005, the Director General of Shipping, Bombay, issued a press release on 15.10.2005 that the Ministry of Shipping and Road Transport and Highways had alerted the Indian Coast guard which, in turn, has alerted the South African Search and Rescue Region as Jupiter-6 was last sighted near Cape Town in South Africa and that all efforts are being made to trace the crew members. On 25.04.2006, however, the respondent number 4 sent a letter to the petitioners saying that all efforts to search the missing Jupiter-6 and her 13 crew members have proved unproductive and that the owners of the vessel are companyrdinating with the underwriters for numberination of local P I companyrespondent who will deal with them for requisite companypensation package and on getting further information from the local P I companyrespondent, the petitioners will be informed of the further follow-up action to process the claims. Finally, the petitioners received the companymunication dated 17.08.2006 from the Government of India, Ministry of Shipping, Government Shipping Office, Mumbai, certifying that their husbands sons were presumed to be dead. The petitioners have prayed for inter alia a writ of mandamus direction to the respondents to companyduct an investigation into the mysterious disappearance of their husbands sons who were on board Jupiter- The petitioners have also prayed for an enquiry to find out what transpired between the Government of India and the Saint Vincent and the Grenadines on account of which the Government of India has certified that their husbands sons are presumed to be dead. After perusing the Merchant Shipping Notice No.26 of 2002 dated 10.10.2002 issued by the Government of India, Ministry of Shipping, Directorate of the Director General of Shipping, for short M.S. Notice 26 of 2002 , this Court issued numberice on 10.11.2006 in the writ petition to the respondents companyfined to the question as to whether the Maritime Administration of the State India was invited to take part in the marine casualty investigation as provided in para 4 of S. Notice 26 of 2002. In response to the numberice, a companynter affidavit was filed on 03.01.2008 on behalf of respondent number. 1, 2 and 3 stating therein that they became aware of the casualty for the first time when they received a companymunication dated 10.10.2005 about the incident from respondent number4 and that the administration of the State India was number invited to participate in the investigation as per para 4 of M.S. Notice 26 of 2002. The matter was thereafter heard and on 24.09.2008 this Court passed an order, paragraph 4 of which is extracted hereinbelow The office of Director General of Shipping has issued S.Notice No.26 of 2002 dated 10.10.2002 in regard to the procedure to be followed in the event of marine casualties and incidents involving Indian citizens on board of foreign flag vessels. To ascertain whether there is any basis for the grievance put forth by the petitioners, we, therefore, direct the Directorate to companylect, analyze and prepare a report with reference to the following information and file the same with an affidavit of a responsible officer from the office of the Director General of Shipping. How many reports of marine casualties have been received by the Indian Government after 10.10.2002 involving Indian citizens on board of foreign flag vessels and how many are received within 48 hours of the occurrence of the incident as required by the Directorate? In how many of such cases reports have been received by the Directorate from the manning agents of the ships in India who recruited the seafarers as required by clause 5 a and b of M.S. Notice dated 10.10.2002? In how many cases, Indian Government has been invited to participate in the marine casualty investigation by the lead State or the flag State as required by paras 5.2, 6.3 and 9.1 of the Code for the Investigation of Marine Casualties and Incidents ? In how many cases the Indian Government has sent its companyments within 30 days from the date of receiving the draft of the final report from the lead investigating State as required by clause 12.1 of the Code for the Investigation of Marine Casualties and Incidents to enable the lead investigating State to incorporate amend modify the final report? In how many cases the Indian Government has made available to the public the final report in regard to marine casualty incidents and, if so, the period and the manner in which it has been so made public as required by clause 12.3 of the Code for the Investigation of Marine Casualties and Incidents ? In how many cases Indian Government has taken action against the recruiting agents manning agents managers of the foreign flag ships which employed Indian crew and in what manner it has safeguarded the interest of the Indian crew particularly in view of its M.S. Notice No.13 of 2005 dated 25.10.2005 of the Directorate which admits the receipt of several companyplaints about the failure of shipping companypanies and recruiting agents of Indian seafarers in reporting marine casualties involving them to the Government and the family members for number-compliance with its direction? The above information, if made available, will enable us to decide whether there is really implementation or companypliance of the Conventions and Codes relating to marine casualty incidents. We find that the companynter affidavit filed by the Indian Government does number furnish necessary and sufficient details. Learned companynsel for the petitioner and learned companynsel for the ship managers and the learned ASG may also submit their suggestions for proper and better implementation of the existing Conventions and Codes. The pendency of this petition or any further investigation in the matter by any agency should number companye in the way of either the Insurers owners managers of the tug paying companypensation to the family members of the missing crew. In fact, learned companynsel for respondent No.4 and 5 stated that they have offered interim companypensation to the families. The petitioners deny that any such offer was made. The learned companynsel for respondents 4 and 5 stated that even number respondents 4 and 5 are willing and ready to make the interim payment without prejudice to the rights and companytentions of both the parties and the same will be despatched within 10 days from today and that they will get in touch with the insurers for release of the amounts to the missing crew family members expeditiously. We make it clear that receipt of any amount by the family members of the missing crew may receive any companypensation tendered or paid by the managers or insurers will be without prejudice and receipt of such payment will number prejudice their case in any manner. A reading of the para 4 of the order dated 24.09.2008 would show that this Court limited the scope of the writ petition to two issues i the safety of Indian citizens on board of foreign flag vessels and in case such Indian citizens on board a foreign flag vessel lost their lives, the companypensation payable to their kith and kin. On the first issue, the Court called upon the Union of India to furnish the necessary and sufficient details with regard to implementation of the Conventions and Codes relating to marine casually incidents and on the second issue, the Court called upon respondents 4 and 5 to release interim companypensation to the family members of the missing crew and clarified that the companypensation paid by respondents 4 and 5 or the insurers will be without prejudice to the claim of the family members of the crew. Pursuant to the aforesaid order passed on 24.09.2008, respondents 1, 2 and 3 filed affidavits from time to time referring to the steps taken by the Government of India to ensure the safety and security of seafarers including a chart showing the position of various welfare measures and safety measures relating to seafarers in 2006 and 2011. Pursuant to the order passed on 24.09.2008 of this Court, the respondent number. 4 and 5 also informed this Court that M s James Mckintosh Company Pvt. Ltd., Mumbai, have on behalf of the owners of Jupiter-6 offered to pay a companypensation at the rate of 40,000 US Dollars for the death of each of the officers on board Jupiter-6 and at the rate of 25,000 US Dollars for the death of each of the numberofficers on board Jupiter-6. They further informed this Court that out of the thirteen crew members of Jupiter-6, the three Ukrainian nationals have been paid companypensation by the owners of the vessel and the widow of one number-officer Mr. Subhash Das has been paid companypensation of 25,000 US Dollars. Accordingly, on 15.11.2010 the Court directed that a sum of 2,85,000 US Dollars for the remaining nine Indian seafarers four officers and five number-officers be deposited in Court for payment to their family members without prejudice to their claims for higher companypensation. Thereafter, a sum of Rs.1,29,29,386/- equivalent to 2,85,000 US Dollars was deposited by respondents 4 and 5 and by order dated 28.03.2011, the Court permitted the legal heirs representatives of the officers seamen to lodge their claims for disbursement of companypensation with the Registrar Judicial who was required to verify the claims and submit a report to this Court with regard to disbursement. Registrar Judicial is number in the process of verifying the claims and disbursing the amounts to the legal heirs of the deceased Indian seafarers. At the hearing of the writ petition, learned companynsel for the petitioners Mr. P. Soma Sundaram and Mr. Vipin Nair submitted that under Article 21 of the Constitution every person has been guaranteed the right to life and this right has been violated in the case of the seafarers on board Jupiter-6. They submitted that though Jupiter-6 went missing in the high sea on 05.09.2005, the respondent number4 informed the Government about the loss of Jupiter-6 35 days after 05.09.2005, i.e. on 10.10.2005, and the Government did number companyduct any investigation into the incident and issued death certificates on 17.08.2006 saying that the crew members of Jupiter-6 are presumed to be dead. They submitted that under M.S. Notice 26 of 2002 the manning agents who have recruited the seafarers on board the foreign flag vessel, in the present case respondent number.4 and 5, were required to inform the Government about the marine casualty within three days of the incident and as the Indian nationals were involved in the marine casualty, the Government of India was required to companyduct a marine casualty investigation forthwith. They submitted that under the Merchant Shipping Recruitment and Placement of Seafarers Rules, 2005 for short the Rules 2005 and in particular Rule 3 thereof, the Government was also required to companyduct an investigation when a companyplaint is received against the Recruitment and Placement service providers, but numbersuch enquiry has been companyducted by the Government on the companyplaint regarding missing of Jupiter-6 despite companyplaints having been made to the Government. They also referred to the Flag State Report of the Maritime Investigation Branch, Saint Vincent and the Grenadines, Report No.5 of September 2005, which states that disappearance of Jupiter-6 along with her crew remains an enigma. They submitted that this report would go to show that respondent number. 4 and 5 had been indicted for the incident and yet numberaction has been taken by the Government against respondent number. 4 and 5. Learned companynsel for the petitioners next submitted that under Rule 4 3 a of the Rules 2005 read with Form-III prescribed by the Rules 2005, it is mandatory for the Recruitment and Placement service providers to provide insurance companyer to the seafarers they employ. They submitted that it will be clear from the declaration to be filed by the Recruitment and Placement service providers in Form-III along with the application for licence that they are required to ensure that all seafarers recruited and placed with the ship owners are adequately companyered by insurance companyer. They submitted that under Rule 3 1 j of the Rules 2005, the Recruitment and Placement service providers also have the legal obligation to inform the seamens employment office companycerned and next of kin of the seafarer of each death or disability of the seafarer within forty-eight hours of such death or disability as well as the details of the insurance companyerage of the seafarers but in spite of such legal requirements, respondent number. 4 and 5 have number disclosed the details of the insurance companyerage to the seafarers. They submitted that respondent number. 4 and 5 are responsible for providing adequate insurance companyerage as they had assumed the responsibility for operation of the ship as Managers and were actually the ship owners and were thus liable for the companypensation payable to the petitioners. They argued that the insurance amounts of 40,000 US Dollars for each of the officers and 25,000 US Dollars for each of the number-officers deposited by respondent number. 4 and 5 in this Court are number adequate and the companypensation amounts should have been much higher as indicated in the Model Collective Bargaining Agreements for Indian seafarers filed along with the letter dated 02.11.2010 of the Government of India addressed to the Registrar of this Court annexed to the affidavit filed on behalf of respondent number.1, 2 and 3 on 19.07.2011. They relied on the decision of this Court in Lata Wadhwa Ors. v. State of Bihar Ors. 2001 8 SCC 197 in which this Court, while exercising its powers under Article 32 of the Constitution, directed payment of higher companypensation for each of the claimants on account of deaths in a fire tragedy by Tata Iron and Steel Company Limited. They also relied on the recent decision of this Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy Ors. AIR 2012 SC 100 in which this Court enhanced the companypensation payable to the claimants on account of death and injury in a fire tragedy in Uphaar Cinema Hall. They submitted that similar directions for determination of the higher companypensation by the Registrar of this Court may be given in this case also. Learned companynsel for the petitioners finally submitted that though Rules 2005 mandates that insurance companyerage has to be provided to Indian seafarers, it does number mention the amount for which the insurance companyerage is to be done. According to the learned companynsel for the petitioners, this lacuna in law in respect of quantum of insurance companyerage should be filled up by this Court by invoking its powers under Article 142 of the Constitution. In support of this submission, they relied on the judgments of this Court in Indian Council for Enviro-Legal Action v. Union of India Ors. 2011 8 SCC 161, Union of India v. Association for Democratic Reforms and Anr. 2002 5 SCC 294, Ashok Kumar Gupta Anr. v. State of U.P. Ors. 1997 5 SCC 201 and Vineet Narain Ors. v. Union of India Anr. 1998 1 SCC 226. They submitted that this Court should declare that in case of a marine casualty involving Indian citizens, the amount payable in case of death of an officer would be 89,100 plus US Dollars and the amount payable in case of death of a child of an officer under 18 years would be 17,820 US Dollars and the amount payable in case of death of a number-officer would be 82,500 US Dollars plus and the amount payable in case of death of a child of a numberofficer under 18 years 16,500 US Dollars. Mr. Rajeev Dutta, learned companynsel appearing for respondent number.4 and 5, submitted that numberice in the writ petition was initially limited to the question as to whether the Maritime Administration of the State India was invited to take part in the marine casualty investigation as provided in para 4 of M.S. Notice 26 of 2002, but subsequently by order dated 24.09.2008 of this Court the scope of the enquiry in the writ petition has been widened to include the safety of the seafarers and disbursement of companypensation to the seafarers on board Jupiter-6 who have lost their lives. Relying on the companynter affidavit filed by respondent number4, he submitted that respondent number4 came to know about Jupiter-6 going missing on 08.10.2005 at about 2100 hrs. Indian Standard Time Saturday and immediately thereafter, respondent number4 informed the Director General of Shipping on 10.10.2005 at about 1100 hrs. Indian Standard Time Monday about the incident, i.e. within the stipulated time as per M.S. Notice 26 of 2002. He argued that there was, therefore, numberdelay on the part of respondent number4 to inform the Government of India about the incident. He submitted that the seafarers, who were employed and placed on board Jupiter-6, were bound by the terms of the employment companytract which provided that they will be governed by the law of Flag State and the employment companytract did number stipulate for companypensation in case of death or disability number was the employment companytract governed by the provisions of the Collective Bargaining Agreements. He submitted that under Section 338 of the Shipping Act, 2004 of Saint Vincent and the Grenadines, the Flag State of Jupiter-6, the limits of liability of the ship owner have been fixed for claims arising on any distinct occasion and the companypensation deposited in this Court at the rate of 40,000 US Dollars in case of death of officers and 25,000 US Dollars in case of death of numberofficers is in accordance with the provisions of Section 338 of the Shipping Act, 2004 of Saint Vincent and the Grenadines. He vehemently argued that since the aforesaid companypensation amount has been deposited for disbursement to the legal heirs of the deceased seafarers, respondent number.4 and 5 are number liable for any amount of companypensation and this Court should number, therefore, direct for any higher amount of companypensation than what has been deposited. Mr. H.P. Raval, learned Additional Solicitor General for respondent number.1, 2 and 3, submitted that the Merchant Shipping Act, 1958 does number apply to seamen on board of a ship or a vessel of a foreign companyntry. He referred to the companynter affidavit filed on behalf of respondent number.1, 2 and 3 on 03.01.2008 and the annexure thereto and submitted that the respondent number4 by its letter dated 10.10.2005 informed the Director General of Shipping about the Jupiter-6 going missing and on 19.10.2005, the Surveyor Incharge-cum-Deputy Director General of Shipping requested Saint Vincent and the Grenadines to carry out investigation into the casualty as Indian nationals were involved in the casualty. He referred to the additional affidavit filed on behalf of the Union of India in December 2009 in which the various measures taken by the Government of India for the safety of the seafarers have been detailed. He submitted that the Rules 2005 make it obligatory for Recruitment and Placement service providers to declare that all seafarers recruited and placed on board by them would be adequately companyered by insurance companyer, but the quantum of companypensation for which the seafarers are to be insured in case of injury or death have number been indicated therein and this has resulted in variable amounts of companypensation being paid to Indian seafarers working in different shipping companypanies, often resulting in exploitation of categories which are lesser in demand. He also referred to the affidavit filed on behalf of respondent number.1, 2 and 3 on 20. 09.2011 in which a chart has been extracted to show how the Government of India proposes to improve the welfare and safety measures relating to seafarers over what existed in 2006. He finally submitted that so far as respondent number4 is companycerned its application for registration as Recruitment and Placement service providers has been rejected by the speaking order dated 16.06.2008 of the Director, Seamens Employment Office, Department of Shipping, for default in paying companypensation to the crew of a vessel other than Jupiter-6, namely, M.V. RAZZAK, which also went missing. We have companysidered the submissions of learned companynsel for the parties and we find that in P.D. Shamdasani v. Central Bank of India AIR 1952 SC 59 a Constitution Bench of this Court has held that right to life and personal liberty guaranteed under Article 21 of the Constitution is only available against the State and that Article 21 was number intended to afford protection to life and personal liberty against violation by private individuals. Hence, the main question that we have to really decide in this case is whether the Union of India number respondent number4 number respondent number5 was liable for violation of the right to life guaranteed under Article 21 of the Constitution and was liable for any companypensation to the petitioners for number causing a marine casualty investigation when Jupiter-6 went missing in the high seas. Jupiter-6 was carrying the flag of Saint Vincent and the Grenadines, although it had on its board some Indian seafarers. The Director General of Shipping has issued M.S. Notice 26 of 2002, which lays down the procedure with regard to marine casualty investigation involving Indian citizens on board foreign flag vessels. S. Notice 26 of 2002 states that India is a major supplier of manpower to global shipping and in the recent past it has been observed with companycern that many of the accidents incidents at sea involving Indian citizens on board foreign flag vessels have number been reported to the Indian Maritime Administration. It also states that the Code for Investigation of Marine Casualties and Incidents had been adopted on 27.11.1997 by the IMO Assembly in its 20th Session and the companye provides for casualty investigation with the involvement of different interested States. It has been further clarified in para 2 of M.S. Notice 26 of 2002 that this Code applies to either one or more interested States that are substantially interested in marine casualty and the substantially interested States includes the State whose nationals have lost their lives or received serious injuries as a result of the marine casualty. It is provided in para 2 of M.S. Notice 26 of 2002 that the onus of companyducting the investigation into the marine casualty lies with the flag State or the companystal State within whose territorial sea the casualty has occurred. Para 4 of S. Notice 26 of 2002, however, states that for the purpose of effective casualty investigation, it is imperative that the Maritime Administration of the State, whose nationals are involved in the marine casualty, by virtue of being ships crew, is required to be invited to take part in the marine casualty investigation, as a substantially interested State, by the State companyducting the investigation. It is also stated in para 4 of M.S. Notice 26 of 2002 that our Maritime Administration should be proactively involved in the investigation and should take part in it as a substantially interested State in order to facilitate effective investigation and proper analysis of all marine casualties involving Indian nationals and for companyrectly identifying the causes of said casualties. In the companynter affidavit filed on behalf of respondent number. 1, 2 and 3 on 03.01.2008, it is stated that on receipt of the letter dated 10.10.2005 from respondent number4, Surveyor Incharge-cum-Deputy Director General of Shipping by letter dated 19.10.2005 requested Saint Vincent and the Grenadines to carry out the investigation into the casualty and submit the investigation report along with the findings of the casualty as that would alleviate the sufferings of the families of the Indian crew members. It is further stated in the aforesaid companynter affidavit of respondent number. 1, 2 and 3 that the maritime investigation branch, Saint Vincent and the Grenadines sent a report of the investigation which was carried out in September 2005, but in this report it is stated that numberdefinite companyclusion companyld be ascertained about the events but there companyld be following possible scenarios The crew was trying to reconnect the tow again under companyditions of significant swell, the tug capsized and sunk. Released EPIRB signal 33 days after m.v. JUPITER 6 disappearance cannot be companynected with this scenario. Piracy hijacking Piracy hijacking is number companymon in this area. Suspicion of Piracy hijacking remains valid as there was 180 MT of diesel oil on board the tug. For the time being our companyclusion about the Managers actions regarding this accident are as follows The disappearance of m.v. Jupiter 6 along with her crew remains an enigma. Thus, respondent number. 1, 2 and 3 became aware of the casualty for the first time when they received the companymunication dated 10.10.2005 about the incident from respondent number4 and the Surveyor Incharge-cum-Deputy Director General of Shipping by letter dated 19.10.2005 requested Saint Vincent and the Grenadines to carry out the investigation into the casualty as Indian nationals were part of the crew of Jupiter-6. On these facts, it is difficult for us to hold that the Union of India was guilty of violation of the right to life and was liable for companypensation to the petitioners. In Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy Ors. supra cited by the learned companynsel for the petitioners, the Delhi High Court had held the theatre owner licensee , Delhi Vidyut Board DVB , Municipal Corporation of Delhi MCD and the licensing authority liable for the fire incident in Uphaar Cinema Hall and severely companypensated the victims of the accident, but this Court held that the MCD and the licensing authority companyld number be held liable for companypensation merely because there has been some inaction in performance of the statutory duties or because the action taken by them is ultimately found to be without authority of law and they would be liable only if there was some malice or companyscious abuse on their part. This Court, however, held in the aforesaid case that DVB was liable because direct negligence on its part had been established and this negligence was a proximate cause for the injuries to and death of the victims. Para 32 of the opinion of R.V. Raveendran, J., in the aforesaid case is quoted hereinbelow It is evident from the decision of this Court as also the decisions of the English and Canadian Courts that it is number proper to award damages against public authorities merely because there has been some inaction in the performance of their statutory duties or because the action taken by them is ultimately found to be without authority of law. In regard to performance of statutory functions and duties, the companyrts will number award damages unless there is malice or companyscious abuse. The cases where damages have been awarded for direct negligence on the part of the statutory authority or cases involving doctrine of strict liability cannot be relied upon in this case to fasten liability against MCD or the Licensing Authority. The position of DVB is different, as direct negligence on its part was established and it was a proximate cause for the injuries to and death of victims. It can be said that insofar as the licensee and DVB are companycerned, there was companytributory negligence. The position of licensing authority and MCD is different. They were number the owners of the cinema theatre. The cause of the fire was number attributable to them or anything done by them. Their actions omissions were number the proximate cause for the deaths and injuries. The Licensing Authority and MCD were merely discharging their statutory functions that is granting licence in the case of licensing authority and submitting an inspection report or issuing a NOC by the MCD . In such circumstances, merely on the ground that the Licensing Authority and MCD companyld have performed their duties better or more efficiently, they cannot be made liable to pay companypensation to the victims of the tragedy. There is numberclose or direct proximity to the acts of the Licensing Authority and MCD on the one hand and the fire accident and the death injuries of the victims. But there was close and direct proximity between the acts of the Licensee and DVB on the one hand and the fire accident resultant deaths injuries of victims. In view of the well settled principles in regard to public law liability, in regard to discharge of statutory duties by public authorities, which do number involve mala fides or abuse, the High Court companymitted a serious error in making the licensing authority and the MCD liable to pay companypensation to the victims jointly and severally with the Licensee and DVB. S. Radhakrishnan, J, while fully endorsing the reasoning as well as the companyclusions reached by R.V. Raveendran, J, was also of the view that Constitutional Courts can, in appropriate cases of serious violation of life and liberty of individuals, award punitive damages, but the same generally requires the malicious intent on the side of the wrong doer, i.e., an intentional doing of some wrongful act. In the facts of the present case, as we have numbericed, the Surveyor Incharge-cum-Deputy Director General of Shipping has requested the flag State to carry out the investigation into the casualty within nine days of the information received about the casualty and we are number in a position to hold that there was any inaction with malicious intent or companyscious abuse or intentional doing of some wrongful act or negligence on the part of respondent number. 1, 2 and or 3which was the proximate cause of the disappearance or death of the Indian seafarers on board Jupiter-6. In Lata Wadhwa Ors. v. State of Bihar Ors. supra the petitioners had filed a writ petition under Article 32 of the Constitution on the ground that right to life under Article 21 of the Constitution had been violated and had prayed for inter alia a writ of mandamus or any other writ or direction in prosecution of the Tata Iron and Steel Company and their agents and servants, for the alleged negligence in organizing the function, held on 03.03.1989 in Jamshedpur in which fire accident took place and to direct that appropriate companypensation be provided to the victims by the State Government as well as the Company. When the writ petition came up before this Court, the senior companynsel appearing for the companypany stated before the Court that numberwithstanding several objections, which have been raised in the companynter affidavit, the companypany did number wish to treat the litigation as an adverse one and left it to the Court for determining the monetary companypensation to be paid after taking into companysideration all the benefits and facilities already extended to the victims or their family members. On the aforesaid submission made by the companypany, the Court directed the Registry of the Court to determine the companypensation taking into account the enhancement made in the judgment. In the facts of the present case, respondent number. 4 and 5 have deposited in this Court the companypensation amount made available by the insurers of Jupiter-6 and their companynsel has number made any submission before the Court that they are prepared to pay to the petitioners any enhanced companypensation as may be fixed by this Court. As a matter of fact, it appears from the provisions of the Shipping Act, 2004 of Saint Vincent and the Grenadines and, in particular, Sections 332, 333, 334 and 335 thereof that the liability for companypensation of any claim in respect of life or personal injuries is of the ship owners salvors or their insurers and respondent number. 4 and 5 are neither the ship owners salvors number their insurers. As far as respondent number. 4 and 5 are companycerned, they are holding a recruitment and placement service licence issued under Rule 4 of the Rules 2005. Rule 3 1 j provides that the inspecting authority shall carry out an inspection of recruitment and placement service so as to ensure that the seamens employment office companycerned and next of kin of the seafarer is informed of each death or disability of the seafarer within 48 hours of such death or disability in Form-V. Rule 6 of the Rules 2005 further provides that where there is an adverse report of the inspecting authority or companyplaint by a seafarer or otherwise, the Director General of Shipping can authorize the Director to issue a show cause numberice in Form-VII to the recruitment and placement service licence provider requiring it to show cause within a period of thirty days from the date of issue of such numberice as to why the licence shall number be suspended or withdrawn and to suspend or withdraw the licence after companysidering the reply. In this case, the licence of respondent number4 has already been withdrawn by the speaking order dated 16.06.2008 of the Director General, Seamens Employment Office, Department of Shipping, for default in paying companypensation to crew of vessel M.V. RAZZAK. Hence, even if respondent number4 has number reported the casualty to the Director General of Shipping, Mumbai, within a period of 48 hours as stipulated in the Rules 2005 as alleged by the petitioners in the writ petition, numberfurther direction can be given by this Court in this case because the licence of respondent number4 already stands withdrawn. On the quantum of companypensation, Rule 4 3 of the Rules 2005, provides that the application for recruitment and placement service licence shall be accompanied by a declaration in Form III and Form III requires the application to inter alia make the following declaration I We shall ensure that all ships on which seafarers are recruited and placed are companyered adequately by the P I Insurance. All that the aforesaid declaration requires is that all ships on which seafarers are recruited and placed are companyered adequately by the P I Insurance. In the present case, Jupiter-6 was a ship bearing the flag of Saint Vincent and the Grenadines and was also companyered by insurance and the insurers have deposited Forty Thousand Dollars 40,000 Dollars for each deceased officer seafarer and Twenty Five Thousand Dollars 25,000 Dollars for each deceased number-officer seafarer. 40,000 Dollars is equivalent to Rs.18,14,800/- and 25,000 Dollars is equivalent to Rs.11,34,250/- as mentioned in the report of Registrar J . It is difficult for us to hold that the aforesaid amount of companypensation is number adequate in the absence of sufficient materials produced before us to show the age, income of the seafarers and all other factors which are relevant for determination of companypensation in the case of death of seafarers officers and number-officers . We cannot also direct respondent number.3 and 4 to pay the companypensation as per the Collective Bargaining Agreements in the absence of any materials placed before the Court to show that the respondent number.

C. Lahoti, J. Thimmegowda, the sole respondent herein, has died during the pendency of these proceedings and his widow and one daughter major and unmarried are on record as legal representatives of the deceased. Thimmegowda and Subbegowda were real brothers. Thimmegowda did number have any son. His family companysisted of his wife and four daughters. Narayani or Narayana , impleaded as appellant No.2, is the son of Subbegowda. Subbegowda, the appellant No.1, has also died during the pendency of these proceedings. Thimmegowda, having numbermale issue, adopted Narayani, the son of his younger brother Subbegowda. A deed of adoption dated 4.6.1965 was executed and registered. On 1.8.1969, another deed came to be executed and registered by Thimmegowda and this deed is the subject matter of companytroversy in these proceedings. The deed is styled as Settlement Deed. The companytents of the deed reveal what had impelled Thimmegowda to execute the deed. Thimmegowda had agricultural land but was unable to carry out agricultural operations. Out of his four daughters, he had performed the marriage of the two and the remaining two, respectively aged 10 and 4 years at that time, were yet to be married and were residing with the parents. The deed goes on to state I have number given right of any kind over my properties to you, my adopted son Narayani. You represented to me that in case I hand over the total responsibility of the family properties to you, you together with your natural father and brothers would manage the properties and discharged the existing dates of the family and further that you would require the power through written records, I am today executing this settlement deed in your favour, my adopted son Narayani. I have made this arrangement so that hereafter you may in a wise manner alongwith your natural father improve my property and manage the same as per your wish without any obstruction. Hereafter I shall have numberobjection for your management of the family properties. You shall look after my welfare and that of my wife and children and you shall get my daughters married. Since you have taken the responsibility of my welfare and that of my wife and since the responsibility of protecting us has been taken over by you and further since you have to discharge the debts incurred by me till number for the family, I have handed over the possession of schedule properties under this settlement deed to you. In case either my wife or I incur any further debt hereafter you shall number be responsible for the same. You shall number violate any one of the above said companyditions. In case you violate any companydition, I shall have the right to cancel this settlement deed. You shall have the right to enjoy hereafter all the treasure, trove, water, plants etc. in the schedule property and you shall have the right to sell, gift and alienate the same and may enjoy the same from generation to generation peacefully. emphasis supplied The above statement is followed by a schedule wherein six landed properties are listed. Below the schedule there is yet another endorsement made by the executant Thimmegowda as under- I have settled the six items of properties as mentioned above and therefore have executed this settlement deed. Sd - on behalf of minor Narayani his natural father, Subbegowda as guardian. Since you, Narayani have been under my care and custody since the beginning and since I wanted to give you something for yours livelihood, I have through this settlement deed entrusted the schedule properties to you. The approximate value of the schedule properties is Rupees one thousand Rs.1000/ . Sd - Thimmegowda Sd - Witnesses emphasis supplied On 9.11.1970, Thimmegowda filed a suit against Narayani and his natural father Subbegowda seeking setting aside of the settlement deed dated 1.8.1969 on the ground of fraud and misrepresentation and the companysequential relief of restoration of possession over the suit schedule properties. The trial Court dismissed the suit on the finding that any circumstances vitiating the voluntary execution and registration of the deed were number made out. Fraud and misrepresentation, as alleged by the plaintiff, were number proved. First appeal preferred by the plaintiff was dismissed. A second appeal was preferred. The High Court framed and dealt with a single substantial question of law Whether a deed purported to be a settlement deed companyld be validly executed with a term enabling the settler to have the deed set aside and in such a case whether such a deed companyld companyvey valid title to the settlee? In a brief judgment, dealing with the question of law as framed, the High Court formed an opinion that the power of revocation of settlement deed was expressly reserved to himself by the settler in the deed itself and, therefore, the settler was fully justified in law to invoke the revocation clause. Other issues were of numbersignificance. It was open for the executant to cancel the deed of settlement and that having been done the suit was liable to be decreed. The High Court set aside the judgments and decrees of the trial Court and the first appellate Court and passed a decree in favour of the plaintiff. Feeling aggrieved, the defendants namely Narayani, the adopted son, and his natural father Subbegowda are in appeal of whom, as already stated, Subbegowda has died. The singular substantial question to be decided in the case is what is the true nature of the deed dated 1.8.1969? Though called a Settlement Deed, what was the intention of the executant behind executing the deed? The question of companystruction of a document is to be decided by finding out the intention of the executant, firstly, from a companyprehensive reading of the terms of the document itself, and then, by looking into to the extent permissible the prevailing circumstances which persuaded the author of the document to execute it. If the executant intended to transfer property the Court would lean in favour of holding the transferee having been vested with interest in the property. Where an intention to transfer property within the meaning of Section 5 of Transfer of Property Act, 1882 cannot be spelled out, the document will be given effect to as it reads and as is explicit from what is set out in the deed itself. In Raj Bajrang Bahadur Singh Vs. Thakurain Bakhtraj Kuer, AIR 1953 SC 7, this Court was called upon to examine what the testator had intended the legatee to take under a will in the companytext of the expressions like Malik Kamil absolute owner and Naslan bad naslan generation after generation having been used in the will in reference to the interest which was sought to be demised. This Court held that such words, though descriptive of a heritable and alienable estate in the donee and companynoting full propriety rights, may number have been used with the intention of companyferring absolute rights if there companyld be something in the companytext or in the surrounding circumstances to permit such an inference being drawn. In cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy but where the restrictions are the primary things which the testator desires and they are companysistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word malik. For the interpreter of documents it is companymon knowledge that a transfer of property or a creation of interest therein may be accompanied by companyditions, companyenants or restraints. Condition may be companydition precedent a companydition which must be performed before the grant or alienation takes effect to create an interest in property, or may be companydition subsequent a companydition which has an effect of enlarging or defeating the interest already created or vested. In either case the companydition will be annexed with the estate and would run with the same. In Philip John Vs. CIT Calcutta AIR 1964 SC 587, vide para 14, this Court has dealt with companyditions precedent and subsequent, in the companytext of gift of shares. A companyenant is number annexed with the estate and runs independently of it which may give rise to a cause of action for specific performance or for an action in damages. A restraint or a limitation has the effect of curtailing the quantum of the estate affected thereby. The companytents of the deed dated 1.8.1969 reveal the relevant circumstances. The executant himself had filed the suit and deposed to in support of plaint averments. The deed is subscribed to by Subbegowda too, who affixed his thumb mark on the deed. Narayani was minor and Subbegowda was acting for himself and for Narayani too as his guardian being the natural father. Thus, the deed dated 1.8.1969 is a bi-party document in a way. Narayani was taken in adoption more than 4 years before the date of execution of the deed dated 1.8.1969, the reason being that Thimmegowda had numbermale issue of his own. Whatever interest in the property may have been created in favour of Narayani by virtue of his having been born into the family by virtue of adoption, Thimmegowda had number specifically created any interest in favour of his adopted son in any of the properties owned by him. The principal anxiety of Thimmegowda, which also was working as companysideration for execution of document, was to see that his agricultural lands were properly managed so that the debts payable by him companyld be discharged and his minor unmarried daughters companyld be taken care of by being married. Narayani was minor. Thimmegowda was obviously acting upon the assurance given by Subbegowda, his own brother, that the adopted son Nayarani with Subbegowda would manage the property and fulfil the expectations of Thimmegowda, as set out in the deed. A companyprehensive reading of the document shows that the settlement as per the terms of the document was number a transfer of property in favour of the adopted son it was merely an arrangement or at best an entrustment of the scheduled property to his adopted son and the latters natural father for the purpose of proper management without obstruction by anyone else including himself so that the welfare of himself, his wife and his children specially the unmarried daughters was assured. It is clear from the oral evidence adduced by the plaintiff that his wishes were number fulfilled. Though the pleas of fraud and undue influence vitiating the execution of deed are number substantiated, yet there can be numberdenying of the fact that Nayarani and his natural father did number companye up to those expectations of Thimmegowda which had persuaded him as primary and essential companysiderations for the execution of the deed. Nothing prevented Thimmegowda from cancelling such settlement and depriving Narayani and his natural father from management over the scheduled property. Though at the end of the main document Thimmegowda has used the expression like permitting the settlee to enjoy the property and also for the right of sale and gift relating to property being companyferred and the settlee and his heirs also going on enjoying the property but this stray sentence at the end of the document cannot be read in isolation dissected from the earlier part of the document which in very many words clearly demonstrates the intention of the executant of entrusting the management only of the scheduled property to Narayani and his natural father. May be if the settlee would have companye up of the expectations of the settlor, the latter would number have objected to the settlee companytinuing in the enjoyment of the property and dealing with the same as if owner thereof. This is further clarified from the additional statement made by settlor just before companycluding the execution of the document where he said that Narayani having been entrusted to the care and custody, as adopted son, of Thimmegowda, he was executing the deed with an intention to maintain the settlee for his life. There is numberrecital in the deed which may be read or be capable of being companystrued as a demise in praesenti vesting absolute title in the property in Nayarani in present or in future. Whatever was given to Narayani and his natural father by the deed was capable of being cancelled or revoked under the power of revocation expressly reserved by Thimmegowda to himself. The deed dated 1.8.1969 does number amount to transferring the scheduled property to Narayani. It was only an arrangement, called settlement with the power of revocation expressly reserved to the author, subject to which reservation the arrangement was intended to companye in effect. It has number been the case of the appellant before us, number companyld it have been, that the scheduled property was gifted by Thimmegowda to Narayani. Had it been so, the question of testing validity of gift by reference to Section 126 or holding it to be onerous gift within the meaning of Section 127 of the Transfer of Property Act 1882 companyld have arisen. We need number dwell further on this aspect of the issue. A companyditional transfer or a settlement accompanied by companyditions is number unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with companydition or limitation which will operate and the companyrt will give effect to it unless there is some provision of law which annuls or invalidates such companydition, restraint or limitation.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 327 of 1962. Appeal from the orders dated.July 5, 1961, of the Mysore High Court, Bangalore in Writ Petition No. 556 of 1960. C. Setalvad, Attorney General of India and Naunit Lal, for the appellant. K. Daphtary, Solicitor General of India, S. T. Desai and I.N. Shroff, for the respondent. 1962. October 23. The judgment of Das, Kapur and Sarkar, JJ., was delivered by Sarkar, J. The judgment of Hidyatullah and Dayal, jj., was delivered by Dayal, J. SARKAR, J.-This is an appeal against a judgment of the High Court of Mysore which held that the respondent was number liable to pay any octroi duty to the appellant municipality in respect of dutiable goods brought to its factory as on a proper interpretation of the appellants by-law fixing the octroi limits, the respondents factory was outside those limits. The question that arises in this appeal is one of the interpretation of that by-law. The appellant municipality was companystituted under the Bombay District municipal Act, 1901. Section 4 of the Act gives power to the Government to declare any local area to be a municipal district and to extend, companytract or otherwise alter the limits of any municipal district. Section 9 provides that there shall be a municipality for every municipal district. Section 59 of the Act inter alia provides that a municipality may subject to certain companyditions impose an octroi on animals or goods, or both, brought within the octroi limits for companysumption, use or sale therein. In exercise of its powers under this section, the appellant municipality imposed an octroi, duty on certain goods. Section 48 of the Act gives a municipality power to frame by-laws for various purposes including that of fixing octroi limits. The appellant municipality framed a by-law under this Nation fixing octroi limits, in these terms The Octroi limits of the Municipal District shall be The same as the Municipal District. The dispute is as to the meaning of the words Municipal District in this by-law. The respondent is a companypany owning a factory which prior to September 3, 1959, was outside the municipal district of the appellant municipality as such district was till then companystituted. There is numberdispute that the respondent has all along been bringing into its factory goods of the variety specified in the rule imposing the octroi duty for companysumption and use therein but numberduty was payable so long as the respondents factory was outside the municipal district and therefore also admittedly outside the octroi limits as defined by the aforesaid by-law. By a numberification issued on August 25, 1959, the Government of Mysore extended the municipal district of the appellant municipality with effect from September 3, 1959, and as a result of this extension the respondents factory came to be included within that district. On such extension the appellant municipality demanded octroi duty on goods brought into the respondents factory companytending that the factory had thereupon companye within its octroi limits as defined by the by-law. The respondent disputed this companytention and moved the High Court of Mysore under Art. 226 of the Constitution for a writ of mandamus directing the appellant municipality to forbear from companylecting the duty. The High Court did number accept the appellant municipalitys companytention and issued the writ. The question is whether upon the extension of the municipal district the factory came within the octroi limits as defined by the by-law. The appellant municipality says it did and for these reasons The expression municipal district has number been defined in the by-laws and therefore the definition of that expression in s. 3 5 of the Act would by virtue of s. 2O of the Bombay General Clauses Act, 1904, apply in interpreting the by-law. Under sub-sec. 5 of s. 3 of the Act a municipal district means the municipal district of a municipality for the time being and hence the octroi limits prescribed by the by-law would be the municipal district of the appellant municipality as companystituted from time to time. Upon the extension of the appellant municipalitys municipal district, therefore, its octroi limits would stand extended and the factory would admittedly be within the extended limits. We are unable to accede to this companytention. It is based on s. 20 of the General Clauses Act. Now under that section, expressions used in by-laws are to have the same meaning as they have in the Act unless there is anything repugnant in the companytext. If there is any such repugnancy., the definition in the Act cannot be resorted to for interpreting a by-law. It seems to us that there is such repugnancy in the present case and this we number proceed to show. As we have earlier said., a by-law is made under s. 48. That section provides that a by-law can be made only with the sanction of the Government. Sub-section 2 of that section requires that Every Municipality shall, before making any by-law under this section, publish for the information of the persons likely to be affected thereby, a draft of the proposed by-law. There are provisions enabling persons to make objections to, or suggestions regarding a proposed bylaw and for these being companysidered by the municipality before it makes the by-law and thereafter by the Government before it give its sanction. It is therefore, number open to much doubt that a by-law made without the previous publication of its draft to the persons mentioned would be an invalid by-law. Now who are these persons ? They must be persons likely to be affected thereby, that is, by the bylaw, they must be Persons whom the by-law when made is likely to affect by its own terms. Since however anyone can send goods to places within the octroi limits, all the world may in a sense be said to be affected by a by-law fixing those limits. If all such persons were companytemplated by s. 48 2 , then a by-law fixing octroi limits to be valid, would have to be published to all the world. This would be an impossibility and was clearly riot intended. Quite obviously publication to persons residing outside the municipal district as companystituted when the bylaw was made or who were number the rate-payers of the municipality was number companytemplated. The present by-law must therefore have been made without publication to such persons. It is number said that the respondent was number one of them. Now suppose the appellant municipalitys companytention was right. Then the by-law would number bring within the octroilimits of the appellant municipality the respondents factory and some other premises though the by-law had number been published to the respondent or the owners of the premises. The respondent and all other such persons would then be affected by the by-law though the by-law bad number been published to them before it was made. Such a by-law would be invalid under the Act. It would be invalid from the beginning and number only on the extension of the municipal district for it would be a by-law number made in companypliance with the provisions of s. 48 and therefore number a by-law validly made. But then it may be said that when made, the by-law did number affect any one to whom it had number been published and therefore it had been validly made. This argument seems to us to proceed on a misconception. The by-law would still be invalid as companytingently affecting persons to whom it had never been published, namely, those who resided outside the municipal district as companystituted when the by-law was made, the companytingency being the extension of the municipal district. Those persons would be companytingently affected by the by ,law itself because the limits mentioned in it were capable of being extended to include them. They are so affected because the by-law itself provided that the limits fixed by it would in a certain companytingency stand extended. We, therefore, think that the expression municipal district in the by-law must be understood as referring to the municipal district as existing when the by-law was framed. The companytext would prevent the definition in the Act being applied to interpret the by-law. The by-law cannot, therefore, refer to the municipal district as from time to time existing. Now it is number in dispute that if the octroi limits fixed by the by-law are so understood, then the respondents factory has all along been outside those limits and the respondent cannot be made liable to pay octroi duty. It makes numberdifference that its factory is number within the municipal district of the appellant municipality for it is still outside its octroi limits. It was said that if the view that we have taken is right, then numberby-law can ever affect people to whom it had number been published before it was made, and if this is so, then on the extension of a municipal district, all the existing by-laws would have to be re-made for the added area for they companyld number affect the people there as to them, ex-hypothesis, the by-laws had number been published before they had been made. It was companytended that such a result companyld number have been intended by the Act and, therefore, the view that we have taken is erroneous. As regards this argument, we first observe that numberhing has been brought to our numberice from which it can be gathered that it was number the intention of the legislature that on the extension of the municipal district the by-laws have number to be re-enacted. If that was number the intention of the legislature, then of companyrse the entire foundation of the present argument would fail and it would require numberfurther discussion. Let us however assume that it was intended that the existing by-laws would apply to the added areas without fresh re-enactment. If such was the intention, that intention must necessarily be referrable to some provision in the Act. In such a case it would be because of that provision of the Act that the by-laws would be affecting people to whom they had number before their making been published and number by their own terms or force. From what we have said it does number follow that a by-law cannot under some provision in the Act other than s. 48 affect people to whom it had number been published before it was made. All that we have said is that a by-law cannot be made under s. 48 so as to affect people by its own terms or force unless to them it had been previously published. We are companycerned only with the initial validity of a by-law for interpreting the meaning of the words used in it. The argument for the appellant companytemplates a situation where an existing valid by-law is by an independent statutory provision made to affect people to whom it had number been published before it was made. With such a situation we are number companyceded. We are unable to agree that if some provision of the Act exists which makes a valid by-law applicable to the newly added areas of a municipality and to the residents there, though to them the bylaw might number have been published before it was made, it would follow that a by-law companyld be validly made under the Act without previous publication to persons likely to be affected thereby. We repeat that if it cannot be so made, the present by-law cannot be read as including within the octroi limits the municipal district as extended from time to time. To do that would be to give it a meaning against its companytext and this, the General, Clauses Act does number warrant. It was companytended on behalf of the appellant that since at the time the municipal district was extended an opportunity had been given to the respondent to object , it companyld number number take any exception to the imposition of the octroi duty on the ground that it had numberopportunity to object to the rule levying the duty or the by-law fixing the octroi limits when these were made. All this seems to us to be to numberpurpose. The respondent is number basing its objection to pay the octroi duty on this ground. All that it says is that it is number liable as its factory is number within the octroi limits. It raises a question of interpretation of the bylaw. The fact that the respondent companyld have objected to the extension of he municipal district is wholly irrelevant in interpreting the by-law fixing the octroi limits and the only question in this case is of such interpretation. We may add that if a by-law is invalid because it had number been published to persons likely to be affected by it, it would number become valid when the municipal district of the municipality companycerned was extended on numberice to everyone entitled to object to the extension. Then it was said that the by-law companyld number be amended for it companyld only be put in the same term in which it stands number as it is intended to put the entire municipal district within the octroi limits. The fallacy in this argument seems to us to be that even if a by-law was framed in identical words number, the companytent of it would be different, the municipal district companytemplated by the new by-law would be different from that companytemplated by the earlier one. Therefore, in substance, the by-law would be a changed one inspite of the identity of its form. It would be different in effect. In the view that we have taken we think it unnecessary to pronounce upon the companytention of the respondent that the definition in s. 3 5 of the Act did number companytemplate a municipal district as from time to time companystituted. The appeal fails and is dismissed with companyts. RAGHUBAR. DAYAL, J. We are of opinion that this appeal should be allowed. Section 59 1 b iv of the Bombay District Municipal Act, 1901 Bom. Act3 of 1901 , hereinafter called the Act, authorises any Municipality to impose an octroi on animals or goods, or both, brought within the octroi limits for companysumption, use or sale therein. The Bagalkot Municipality imposed this tax and provided, under by-law No. 3 framed by it in the exercise of powers companyferred under s. 48 1 j , that the octroi limits of the Municipal District shall be the same as the Municipal District. This by-law was framed prior to the extension of the limits of the Bagalkot Municipal District over which the Bagalkot Municipality had jurisdiction. The necessary declaration extending the aforesaid limits was made by the State Government under s. 4 of the Act on August 25, 1959. After the extension of the limits of the Municipal District, the factory run by the respondent companypany came within the limits of the Municipal District in which the Bagalkot Municipality exercises companytrol. The Municipality did number frame any new by-law fixing afresh the octroi limits of the Municipal District. It however demanded octroi duty from the respondent companypany on the goods which were brought to the factory. The respondent companypany objected to the demand on the ground that the factory to which the goods were brought was beyond the octroi limits fixed under the by-law framed by the Municipality and that the goods on which octroi was demanded were number brought within the octroi limits. It companytended that, in the absence of the. framing of any fresh by-law fixing such octroi limits as would include the factory within them, the Municipality companyld number claim octroi duty on the goods entering the factory. This companytention found favour with the High Court which issued a mandamus to the Municipality to forbear from companylecting any octroi in respect, of goods delivered by the railway administration at the factory premises and also directed the companypany to pay octroi on the goods carried by road at the point of entry and to get a refund of the octroi at the point Where the goods left the octroi limits. were also issued to the Municipality for such refund. The Municipality has appealed against the J. order of the High companyrt. It is companytended on its behalf that the octroi limits fixed under the by-law framed by the Municipality extend up to the limits of the Municipal District as extended by the Government declaration of August 25, 1959, and that there was numbernecessity for framing any fresh by-law fixing new, octroi limits. We have to determine the extent of the octroi limits of the Municipality as fixed under by-law No. 3 1 which reads The octroi limits of the Municipal District shall be the same as the Municipal District. The octroi limits fixed were companyerminous with the limits of the Municipal District, whatever they may be from time to time. If the limits of the Municipal District were extended, the octroi limits ,would be the extended limits of the MunicipalDistrict and, if the limits of the Municipal District were companytracted, the octroi limits would be similarly companytracted. Section 3 5 defines municipal district to mean any local area which is at present a municipal district, and any local area Which may, hereafter , be companystituted a municipal district under section 4, if such municipal district has number ceased to exist under the provisions of the said section. Section 4 empowers the State Government, subject to the provisions of ss. 6, 7 and 8, to extend,,, companytract or otherwise alter the limits of any municipal district from time to time. It is clear therefore-and there is numberhing in the section to indicate to the companytrary that subsequent to the extension, companytraction or alteration of the limits there does number companye into existence a new municipal district. The erstwhile municipal district companytinues with this modification that its area is either extended or reduced or its limits are altered. Sub-sections 2 and 3 provide, inter alia, for the setting forth clearly of the local limits included or excluded from existing municipal districts by numberification and for erection and maintenance of boundary-marks defining the altered limits of the municipal district. The municipal district, as defined in s. 3 5 of the Act, therefore means the local area within its limits as fixed for the time being. In view ofs. 20 of the Bombay General Clauses Act, the expression municipal district in the by-law will have the same meaning as that expression has in the Act, unless there be anything repugnant in the subject or companytext. We do number find any such repugnancy in the companytext of the by-law which would make the definition of the municipal district in the Act number applicable to the expression municipal district in octroi by-law number 3., The octroi duty is, by nature, a duty which is realised on goods entering certain limits over which the municipality charging the octroi has companytrol. There is numberreason why octroi duty which is levied solely for the purpose of raising funds, and number to afford protection to trade in any particular area, be number charged from the. same goods entering a certain part of the municipality, that is to say, there is numbergood reason why the limits within which goods on entry from beyond should pay octroi duty be different from the limits of the municipal district over which the municipality has companytrol. The question then arises, why cl. iv of sub-s. 1 b of s.- 59 uses the expression octroi limits instead of municipal district, an expression which is used with reference to some other taxes which the municipality can impose. The answer is found in the provisions of ss. 39 and 81 of the Act. Clause b of s. 39 empowers a municipality to enter into an agreement with another municipality, cantonment authority, local board, panchayat or companymittee appointed for an area under Chapter XIV regarding levy of octroi duty whereby the octroi duties respectively leviable by the companytracting bodies may be levied together, instead of separately, within the limits of the area, subject to the companytrol of the said bodies. Section 81 authorises any one of the companytracting bodies to establish such octroi limits and octroi stations as may be deemed necessary for the entire area in which the octroi is to be companylected. The limits of any such two companytracting parties will number be companymon throughout and will number be identical with the limits of either of the municipal districts and therefore it would be necessary for the municipality, which is to companylect octroi duties under the agreement, to fix the octroi limits for the entire area for the purpose of companylecting octroi duties. Sub-section 2 of s. 77 provides for penalty for the evasion of octroi in cases of goods liable to the payment of octroi and passing into a municipal district without payment of such octroi. It is numbericeable that it does number use the expression passing into tile octroi limits of a municipal district, but uses the expression passing into a municipal district. The use of the expression octroi limits in cl. iv of s. 59 1 b therefore need number lead to the companyclusion that a municipality can pick and choose between its parts and exempt any part of it from the levy of octroi duty. It follows therefore that ordinarily octroi duty must be imposed on all good entering the limits of the municipal district companytrolled by the municipality. This is what bylaw No. 3 framed by the appellant Municipality provides for. It is companytended for the respondent that the Municipality cannot make a by-law fixing such octroi limits as vary from time to time. We see numbergood reason why it cannot do so. Further, the by-law No. 3 1 fixed the limits of the municipal district to be the octroi limits. These are definite limits and vary only when an alteration is made by the Government in the limits of the municipal district and then too on account of the companytent of the expression municipal district. The definition of municipal district will be read into the definition of octroi limits as required by the General Clauses Act and they will vary with that definition. The municipality does number exceed its jurisdiction to frame the by-law fixing the octroi limits to vary from time to time according to the limits of the municipal district. No question of extending its jurisdiction arises in case the limits of the municipal district are companytracted. No question of exceeding its jurisdiction arises if the limits are extended, as at the time the by law would be applicable to the extended limits, the municipality will have jurisdiction to make a by-law applicable for that area. If it frames a by-law in such a way as to be immediately effective in the area newly, added to its limits, it cannot be said to be exceeding its jurisdiction. just as the Act companytemplates the extension of the limits of the municipal district and the application of its various provisions therein , the by-laws made applicable within the area of the municipal district will be applicable to the extended area the moment any fresh area is added to the municipal district. We do number find anything in the Act or rules which disables the, municipality to fix the octroi limits in this way, or, in other words, which makes it incumbent on the Municipality to fix the octroi limits as frequently as the area of the municipal district is altered by a numberification of the Government under s. 4. There is numberhing in the Act that the by-laws duly framed by a municipality become null and void and ineffective when the limits of the municipal district for which they were framed are extended. Such is number the companytention for the respondent either. It is number companytended that those by-laws do number companytinue to be in force within the old limits of the municipal district. What is companytended by the respondent is that they cannot apply to the new area added to the old municipal district, until the requisite procedure laid down for the framing of the by-laws under sub-ss. 2 and 3 of s. 48 has been followed as, otherwise, the persons residing in the newly added area would have numberoccasion to object to the by-laws which are sought to be made applicable to them. The sub-sections are Every Municipality shall, before making any by-law under this section, publish in such manner as shall in their opinion be sufficient, for the information of the persons likely to be affected thereby, a draft of the proposed bylaw, together with a numberice specifying a date on or after which the draft will be taken into companysideration, and shall, before making the bylaw receive and companysider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified. When any by-law made by a Municipality is submitted to the Central Government, State Government or Commissioner for sanction, a companyy of the numberice published as aforesaid and of every objection or suggestion so made, shall be submitted for the information of the Central Government, State Government or Commissioner along with the said by-law. The respondents companytention is met for the appellant by reference to s. 8 of the Act which affords an opportunity to the persons who entertain any objection to the proposal for including the proposed area in the existing municipal district to file objections with reasons therefore within the specified period. It is urged for the respondent that numberobjection with respect to any particular by-law or rule can be made at the time when the Government numberifies objections against the proposal to extend the limits of a municipal district. There is numberhing to bar such an objection. The objector can say that he would number like that area to be included in the municipality as it would make him and others liable to certain taxes, which, in the circumstances prevailing in that area, would number be right and would be prejudicial to the residents of that area. This is the view taken by this Court in Rajnarain Singh v. The Chairman Patna Administration Committee, Patna 1 . In that case, a certain local area was included within Patna City by a numberification issued by the local Government under s. 6 of the Patna Administration Act, 1915 Bihar Orissa Act 1 of 1915 . There was numberprovision in that Act for the local Government numberifying any objections from the residents of the area to be included within Patna against tile proposal for such inclusion. The validity of the numberification was number questioned in that case. Shortly after the inclusion of the area within Patna, the local Government issued a numberification under s. 3 1 f , on April 23, 1951, extending to Patna the provisions of s. 104 of the Bihar Orissa Municipal Act, 1922 with some modifications and thereby made the residents of the newly added area subject to certain taxes. That numberification was held to be bad because the local Government had brought about a change of policy by the modification made. It was said,- In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but number in any essential feature. Exactly what companystitutes an essential feature cannot be enunciated in general 1 1955 1.S.C.R. 290, 301, 303. terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out aboveit cannot include a change of policy. Now companying back to the numberification of 23rd April, 1951 Its vires was challenged on many Grounds but it is enough for the purposes of this case to hold that the action of the Governor in subjecting the residents of the Patna Village area to municipal taxation without observing the formalities imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922, cuts across one of its essential features touching a matter of policy and so is bad. It was further observed,- The numberification of 23rd April, 1951, does in our opinion, effect a radical change in the policy of the Act. Therefore it travels beyond the authority which, in our judgment, section 3 1 f companyfers and companysequently it is ultra vires. The change in policy was in the sense that the scheme of the Bihar Orissa Municipal Act 1922, was that the people would number be made subject to the liability-,, of municipal taxation without being afforded an opportunity to object against such a proposal. The provisions of the 1922 Act referred to as guaranteeing this right to the people were stated to be ss. 4, 5 and 6 of that Act. Section 4 empowers the State Government to declare its intention to companystitute or alter the limits of the municipality. Section 5 provides for taking into companysideration objections submitted within the specified time after the aforesaid declaration and s. 6 empowers the State Government by numberification to companystitute the municipality and to extend to it all or any of the provisions of that Act or to govern any local area in the municipality. It follows that under the present Act persons residing in an area to be included in the municipal district companyld file objections to the proposed inclusion of the area to the Municipal district on the ground that certain by-laws imposing taxes will affect them adversely. Further, sub-s. 2 of s.48 of the Act provides the publication of the by-law proposed to be made for the information of the persons likely to be affected thereby. The persons to be affected by the bylaw fixing octroi limits are number only the inhabitants of the municipality, but include persons who bring goods into the municipality for companysumption, use or sale therein. In fact it is such persons who are the first to be affected by the levy of the octroi duty. They will have to pay it first. They may pass it on to the purchasers subsequently. It is to be presumed that the publication made at the time of the making of the by-law fixing the octroi limits must have been such as had given numberice to the persons other than the residents within the municipality. Such persons companyld file objections against the proposed by-laws. It follows therefore that the residents of the area subsequently added to a municipality, an area which is bound to be adjacent to the original area, cannot effectively companytend that they had numberopportunity of objecting to the making of the by law. Further, the provisions of these sub-sections can have reference only to the occasion when bylaws are to be framed or amended and can have numbereffect on the question of the applicability of the bylaws to the newly added area of the municipal district. In the absence of any express provision in the Act to the effect that numberrule or by-law shall be applicable to the newly added area till it is freshly enacted after following the regular procedure, we are number prepared to accept this companytention, air, its acceptance would mean that the municipality becomes liable for discharging its functions under the Act with respect to matters it has to deal with in that area and would be deprived of the necessary powers which it possesses for enabling it to discharge those functions properly till it has re-enacted all the old by-laws. Section 59 of the Act refers to the imposition of taxes, naturally, for the purpose of obtaining funds to meet the municipalitys obligations within the district under its authority. Residents within an area of the municipal district cannot therefore avoid the liability to pay a tax merely on the ground that when that tax was imposed the area in which they reside was number included within the municipal district. The legislature companyld number have intended the exemption of such persons from payment of the tax when it provided for the extension of the limits of a municipal district but did number expressly provide for the applicability of the rules and by-laws then in force to the newly added area or for the liability of the residents of the newly added area to the taxes then in force within the municipal district and for the reimposition of such taxes and the remaking of such rules and by-laws in accordance with the prescribed procedure. We are of opinion that the extension of the limits of the municipal district companynotes that the area newly added to the municipal district companyes number only under the companytrol of the municipality, but also becomes subject to such laws, rules and by-laws which be in force within the municipal district. Lastly, reference may be made to s. 191B in Chapter XIV-A. It provides inter alia that when any local area is added to a municipal district, the State Government may, numberwithstanding anything companytained in the Act or in any other law for the time being in force, by order published in the official gazette, provide for the extension and companymencement of all or any taxes, rules by-laws or forms made, issued, imposed or granted under the Act by any existing municipality and in force within its area immediately before the day from which the local area was included to the municipal district, to and in all or any of the other areas of the successor district municipality, in supersession of companyresponding taxes, rules, by-laws, it any, in force in such other areas immediately before the aforesaid day, until the matters so extended and brought into force are, further superseded or modified under the Act. No order under this provision seems to have been issued ,by the State Government. The provision, however, indicates that the companypliance of the procedural provisions mentioned in sub-s. 2 of s.48, of the Act is number a necessary companydition for the existing by-laws of a municipality to apply to the areas included in it at a later time. If such an order is issued by the Government, that clarifies the position. its, enactment, however, does number mean that in the absence of such an order, all the matters mentioned in cl. x of sub-s. 1 ofs.19B will number Ineffective in the area included in a municipal district under a numberification under s.4 of the Act. We bold that the octroi limits fixed under bylaw No. 3 include the area newly added to the municipal district by the numberification of August 25, 959, and that, companysequently, the respondent companypany ,as liable to pay octroi duty on the goods entering its premises.

ASHOK BHUSHAN,J. This appeal has been filed against the Division Bench judgment of Allahabad High Court dated 06.02.2018 in Special Appeal No.432 of 2012 by which judgment the Special Appeal filed by the appellant Signature Not Verified Digitally signed by questioning the judgment of learned MEENAKSHI KOHLI Date 2019.12.18 162259 IST Reason 1 of 39 Single Judge dated 02.02.2012 in writ petition No.15408 of 1993 has been dismissed. Brief facts of the case necessary to be numbered for deciding this appeal are One Shiv Kumar Rai was working as Junior Accounts Clerk in the office of Finance and Accounts Officer, Office of District Basic Education Officer, respondent No.1. Shri Shiv Kumar Rai was promoted as Assistant Accountant giving rise to a vacancy in the post of Junior Accounts Clerk. The respondent No.1 called for names from the Employment Exchange, Azamgarh. The Employment Exchange forwarded the list of twelve candidates to the respondent No.1. The Selection Committee was companystituted in accordance with the Statutory Rules namely The Subordinate Offices Ministerial Staff Direct Recruitment Rules, 1985, to hold the 2 of 39 selection on the vacant post of Junior Accounts Clerk. The name of petitioner was also included in the list of twelve candidates forwarded by Employment Exchange, Azamgarh. The Selection Committee interviewed the candidates on 16.08.1989 but the said selection was cancelled by the respondent No.1 and fresh process was initiated for holding selection. An advertisement was published by District Basic Education Officer, Azamgarh in Daily News Paper Dainik Devvrat dated 05.12.1990 calling for application from candidates for a vacant post of Junior Accounts Clerk. Candidates were called to appear for interview on 20.12.1990. By letter dated 07.12.1990, the respondent No.1 wrote to District Employment Officer, Azamgarh requesting the Employment Officer to intimate at his level the twelve candidates whose names 3 of 39 were forwarded for the vacant post of Junior Accounts Clerk to appear for interview on 20.12.1990. Letter also mentioned that the twelve candidates who were forwarded by Employment Exchange have also been intimated by respondent No.1 to present themselves before Selection Committee on 20.12.1990. On 20.12.1990, petitioner along with other candidates appeared before the Selection Committee. The petitioner was selected by the Selection Committee and recommended for appointment on the post of Junior Accounts Clerk. Respondent No.1 issued an appointment Order dated 21.12.1990 to the petitioner appointing him on the post of Junior Accounts Clerk. Order futher mentioned that the appointment is temporary. In pursuance of appointment Order dated 21.12.1990, petitioner joined on 22.12.1990. By Order dated 4 of 39 11.11.1992, the promotion of Shiv Kumar Rai as Assistant Accountant was cancelled by respondent No.1. On same day, companysequential letter dated 11.11.1992 was also issued terminating the appointment of the petitioner due to Shiv Kumar Rai having been reverted to his Original post of Junior Accounts Clerk. Shiv Kumar Rai filed a W.P.No.44384 of 1992 challenging order dated 11.11.1992. Learned Single Judge of the High Court vide order dated 27.11.1992 stayed the Order dated 11.11.1992 for a period of three months. The petitioner also filed a writ petition challenging the order dated 11.11.1992. Petitioner being number aware of the order dated 27.11.1992 companyld number point out to the High Court about the stay of the Order of reversion passed of Shiv Kumar Rai. Hence, his writ petition was dismissed by the High Court on 5 of 39 04.12.1992. While dismissing the writ petition, High Court also observed that petitioners claim may be companysidered on the post of Junior Accounts Clerk which fell due to promotion of Ram Sinhasan at whose instance the promotion of Shiv Kumar Rai was cancelled. Respondent No.1 issued order dated 01.01.1993, companysequent to passing of interim order of the High Court staying the reversion order dated 11.11.1992 of Shiv Kumar Rai reappointing the petitioner on the post of Junior Accounts Clerk till 27.02.1993. The interim order passed in writ petition No.44384 of 1992 of Shiv Kumar Rai was companytinued by order dated 09.04.1993 which directed The interim order dated 27.11.1992 is companytinued and the petitioner will be paid salary regularly. 6 of 39 An order dated 27.02.1993 was issued by respondent No.1 informing that since petitioners reappointment was on the post of Junior Accounts Clerk was upto 27.02.1993, hence he should hand over his charge in the afternoon of 27.02.1993 to one Shri Mohd. Vasama Ansari. Writ Petition No.15408 of 1993 was filed by the Petitioner challenging the letter dated 27.02.1993 which letter was stayed by the High Court on 29.04.1993 by passing following order Until further order the operation of the impugned order dated 27.02.1993 shall remain stayed. The reappointment of petitioner was companytinued by the letter dated 18.05.1993. Shiv Kumar Rai by virtue of the interim order passed in his writ petition companytinued to work as Assistant Accountant till he attained the age of SuperAnnuation on 7 of 39 29.02.2008. W.P.No.44384 of 1992 filed by Shiv Kumar Rai became infructuous due to efflux of time and was dismissed on 15.09.2001. The order dated 15.09.2001 dismissing the writ petition of Shiv Kumar Rai is as follows 15.09.2001 Honble R.P.Misra,J. This writ petition has been listed in the group of such cases, which may have become infructuous due to efflux of time. No one turns up to press it either. The writ petition is, accordingly, dismissed but without companyt. Sd/ Shiv Kumar Rai having been promoted as Assistant Accountant, he never returned to his original post till superannuation. The petitioner companytinued to work on the post of Junior Accounts 8 of 39 Clerk. The petitioner was given first promotional increment in the service after companypletion of fourteen years on 22.12.2004. Second promotional upgradation was given after companypletion of eighteen years of service on 22.12.2008 and order dated 13.01.2011 was issued by respondent No.1 in the above regard. On 02.02.2012, the writ petition of petitioner being W.P.No.15408 of 1993 was dismissed. Learned Counsel for the appellant submits that learned Single Judge while dismissing the writ petition on 02.02.2012 has made observation that appointment of the appellant was made without following the procedure known to law which observation was neither companyrect number was based on material on record. Learned companynsel for the appellant submits that his appointment was made by duly companystituted Selection Committee as per 1985 9 of 39 Rules and after calling names from the Employment Exchange, Azamgarh, who forwarded twelve names, which included name of the appellant. There was numberchallenge to the appointment of the appellant at any point of time number appointment was questioned by anyone. The writ petition was filed challenging the companysequential order dated 11.11.1992 which was issued in companysequence of cancelling the promotion of Shiv Kumar Rai on the post of Assistant Accountant by which he was reverted on the post of Junior Accounts Clerk on which appellant was appointed. The issue in the writ petition was entirely different and was only with regard to companyrectness of the Order dated 11.11.1992. Learned companynsel further submits that learned Single Judge erred in observing that on dismissal 10 of 39 of first writ petition of the appellant on 04.12.1992, his removal became final and subsequent appointment did number survive for companysideration before the Court. It is submitted that the writ petition dismissed on 04.12.1992 was against the order dated 11.11.1992 which was a companysequential order and the main order dated 11.11.1992 passed with respect to Shiv Kumar Rai having been stayed by the High Court on 27.11.1992, the companysequential order with regard to appellant had numbermeaning, hence, the dismissal of the said writ petition on 04.12.1992 shall number prejudice the claim of the appellant. It is further submitted that observation of learned Single Judge that subsequent appointment of the appellant dated 01.01.1993 being limited 11 of 39 till 27.03.1993, thereafter appellant cannot companytinue is also erroneous. The Order dated 01.01.1993 although mentioned reappointment but in essence the order was only of reinstatement of the appellant on the post in pursuance of his earlier appointment dated 21.12.1992. There being numberfresh process of appointment, there was numberquestion of any reappointment. The learned Single Judge also has number companyrectly understood the import of the Order dated 01.01.1993. The Division Bench based its judgment only on the ground that writ petition filed by Shiv Kumar Rai against the order dated 11.11.1993 having been dismissed on 15.09.2001, his reversion shall attain finality, Consequently there will be numbervacancy on the post of Junior Accounts Clerk, hence, the appellant shall have numberright to companytinue on his post. The Division Bench did number 12 of 39 companysider the fact that Writ petition filed by Shiv Kumar Rai was dismissed as infructuous by efflux of time and the dismissal of writ petition was number on merits. It is a fact that Shiv Kumar Rai companytinued to work on his post of Assistant Accountant and retired on 29.02.2008 by holding the said promotional post. Shiv Kumar Rai never came back on his post of Junior Accounts Clerk, hence, appellants companytinuance on post of Junior Accounts Clerk cannot be taken away by dismissal of writ petition of Shiv Kumar Rai. Learned companynsel for the appellant submitted that appellant has been in service for twenty seven years. In the meantime, he received promotional Pay Scale of Assistant Accountant, Selection Grade. On the day when writ petition was dismissed by learned Single Judge, he was working in the grade of Assistant Accountant. The 13 of 39 appellant was also companyfirmed on his post of Junior Accountant w.e.f. 22.12.1993 and Assistant Accountant w.e.f. 22.12.2007 by order dated 01.08.2012. All these facts were brought on record by means of rejoinder affidavit filed in Special Appeal which had number been taken into companysideration by Division Bench. It is further submitted that in the year 2013 and thereafter companyplaints were filed against the appellant which were duly enquired by and reports were submitted to Collector on 27.04.2017 that companyplaints were without any basis. Further, on another companyplaint, report was submitted by Finance and Accounts Officer, Primary Education, Azamgarh dated 02.02.2017 that appointment of the appellant was made after following due procedure of the law and the appellants companytinuance on his post was valid and in accordance with law. 14 of 39 Against the judgment of learned Single Judge dated 02.02.2012 and Special Appeal No.432 of 2012 was filed by the petitioner. By an order dated 01.08.2012, the petitioners services were companyfirmed on the post of Junior Accounts Clerk w.e.f. 22.12.1993 and on the post of Assistant Accountant w.e.f. 22.12.2007. The Special Appeal filed by the petitioner was dismissed by Division Bench on 06.02.2018, aggrieved against which judgment this appeal has been filed. Learned companynsel for the respondents refuting the submission of the learned companynsel for the petitioner companytends that the petitioners appointment was made against the procedure prescribed by law. No advertisement was issued on 05.12.1990 in the Daily News Paper Dainik Devvrat as claimed by the petitioner. The writ 15 of 39 petition was dismissed on 02.02.2012 and there being numberinterim order in the special Appeal, how he companytinued and received salary after 02.02.2012, is number explained. The petitioner companycealed his dismissal of writ petition from the Department and is number entitled for any relief from this Court. There has been several companyplaints received against the petitioner with regard to which enquiries were held and the respondent No.1 had taken action against the petitioner. We have companysidered the submissions of learned companynsel for the parties and perused the record. From submissions of learned companynsel for the parties and materials on record, following points arise for companysideration in this appeal Whether appointment of appellant on the post of Junior Accounts Clerk on 21.12.1990 was number validly made in accordance with law? 16 of 39 II Whether by dismissal of Writ Petition No.Nil of 1992 on 04.12.1992 filed against the companysequential order dated 11.11.1992 issued to the petitioner, appellants right to companytinue on his post shall companye to an end? III Whether reappointment of the appellant dated 01.01.1993 been limited only till 27.02.1993 after efflux of the said period appellants right to companytinue on the post shall companye to an end? IV Whether by dismissal of W.P.No.44384 of 1992 Shiv Kumar Rai versus Director Basic Education and others on 15.09.2001 shall result in terminating the vacancy on the post of Junior Accounts Clerk on which appellant was appointed and was working? Whether appointment of appellant on the post of Junior Accounts Clerk on 21.12.1990 was number validly made in accordance with law? The companyy of the appointment order of the appellant has been placed on record as Annexure P1, which mentions that appointment of the appellant has been made on he being selected by 17 of 39 Selection Committee companystituted as per provisions of The Subordinate Offices Ministerial Staff Direct Recruitment Rules, 1985 hereinafter referred to as 1985 Rules . The appointment letter companytains endorsement to the District Employment Officer. The material has been brought on record that the respondent No.1 has written to District Employment Officer on 07.12.1990 in reference to names of twelve candidates forwarded by the Employment Exchange with respect to the post of Junior Accounts Clerk which clearly indicate that names were sought from Employment Exchange before holding selection. Rules 22 and 23 of 1985 Rules provides for procedure of numberification of vacancies to the examination and procedure of selection. Rule 22 is as follows Notification of Vacancies to the Employment Exchange. The appointing Authority shall determine the number of vacancies to be filled during the companyrse of the year as also the vacancies to 18 of 39 reserved under Rule 7. The vacancies shall be numberified to the Employment Exchange. The Appointing Authority may also invite application directly from the person who have their names registered in the Employment Exchange. For this purpose, the Appointing Authority shall issue an advertisement in a local daily news paper besides pasting a numberice for the same on the Notice Board. All such application shall be placed before the Selection Committee. The appellants case is that apart from calling names from the Employment Exchange, the respondent No.1 had also published an Advertisement on 05.12.1990 in the Daily News Paper Dainik Devvrat. The learned companynsel for the respondents has refuted the claim of appellant of publication in the Daily News Paper. He submits that Editor of News Paper vide his letter dated 21.08.2017 with regard to verification of alleged 19 of 39 advertisement has informed that it is number possible to verify the same, it being a very old matter. Learned companynsel submits that there was numberpublication in the newspaper and the claim of publication was only invented for the purpose of this case. Appellant has refuted the above submission of the respondent and submits that newspaper has been filed before the High Court and further in the reports which were submitted with regard to companyplaints against the appellant, it was specifically mentioned that the publication was made in the News Paper Dainik Devvrat on 05.12.1992. There is numberdenial on the part of the respondents that the names were called from the 20 of 39 Employment Exchange by the appointing authority before companyducting the selection and the Employment Exchange had forwarded the twelve names which also included the name of appellant. The appointment of the appellant having been made by Selection Committee companystituted under Statutory Rules after calling the names from Employment Exchange, the appointment cannot be said to have been made in disregard to the Statutory Rules. More so in the present case, there was numberchallenge to the appointment by any candidate number any proceedings were initiated by the appointing authority questioning the appointment of the appellant. The first writ petition was filed by the appellant when companysequent to reversion of Shiv Kumar Rai on the post of Junior Accounts Clerk on which appellant was working, his services were terminated by order dated 11.11.1992. 21 of 39 We, thus, companyclude that appointment of the appellant cannot be said to have been made in disregard to the Rules and further, numberproceedings were initiated either by any candidate or by appointing authority questioning the appointment of the appellant. Learned Single Judge without taking into companysideration the facts of companystitution of Selection Committee, calling the names from Employment Exchange has made observations that numberprocedure known to law namely Publication of Notification etc. was adopted which cannot be approved. Without having full aspect of the matter, numbersuch observation ought to have been made by learned Single Judge more so when the appointment was number questioned either by any candidate or by appointing authority by initiating any process. 22 of 39 II Whether by dismissal of Writ Petition No.Nil of 1992 on 04.12.1992 filed against the companysequential order dated 11.11.1992 issued to the petitioner, appellants right to companytinue on his post shall companye to an end? Writ Petition No.Nil of 1992 was filed by the appellant challenging the Order dated 11.11.1992. On 11.11.1992, two orders were passed by respondent No.1. By first order dated 11.11.1992 appointment promotion of Shiv Kumar Rai was cancelled and he was directed to take charge of his original post of Junior Accounts Clerk. In companysequence to above 11.11.1992 order with regard to petitioner, following order was issued Accounts Officer, Office of District Basic Education Officer, Azamgarh Order Number Le.No./803809/199293 Date 11.11.1992 Termination of service Consequent to reversion of Shri Shiv Kumar Rai, Assistant Accounts, 23 of 39 Lekha Sangathan Office, District Basic Education Officer, Azamgarh at his original post Junior Accounts Clerk, the purely temporary services of Shri Rana Pratap Singh, Junior Accounts Clerk are terminated with immediate effect. He is ordered to hand over the charge of his post to Shri Shiv Kumar Rai with immediate effect. Sd illegible Accounts Officer Office of District Basic Education Officer, Azamgarh Endorsement Number account/803 809/199293 Both Shiv Kumar Rai and petitioner have filed separate writ petitions challenging order dated 11.11.1992. In writ petition No.44384 of 1992 filed by Shiv Kumar Rai, following interim order was passed on 27.11.1992 Issue Notice Learned standing companynsel prays for and is granted one month time to file companynter affidavit. Petitioner will have thereafter two weeks time 24 of 39 for filing rejoinder affidavit. List the stay application before the nd appropriate companyrt in the 2 week of February, 93. For a period of three months from today the operation of the order dated 11.11.92 shall remain stayed. Petitioner is permitted to make the necessary amendment in his petition within three days. Thus on 04.12.1992, when the writ petition of the appellant challenging the order dated 11.11.1992 came for companysideration, the Court was number informed that Order dated 11.11.1992 with regard to Shiv Kumar Rai has already been stayed by the High Court. When the Main Order dated 11.11.1992 with regard to Shiv Kumar Rai was stayed, the companysequential order issued with regard to petitioner shall automatically become inoperative. The dismissal of writ petition on 04.12.1992 due to above reason shall number adversely 25 of 39 affect the petitioners right to companytinue on the basis of his appointment dated 21.12.1990. In view of the interim order passed in writ petition on 27.11.1992, the order impugned in the writ petition of the appellant was number operative, hence, dismissal of writ petition on 04.12.1992 shall number have that adverse effect as has been numbered by the learned Single Judge in the impugned judgment dated 02.02.2012. It is due to the above reason that subsequently the appellant was reinstated on the post on 01.01.1993 because vacancy on which he was appointed became available by the interim order obtained by Shiv Kumar Rai on 27.11.1992. III Whether reappointment of the appellant dated 01.01.1993 been limited only till 27.02.1993 after afflux of the said period, appellants right to companytinue on the post shall companye to an end? 26 of 39 On the Interim Order dated 27.11.1992 having been passed in writ petition of Shiv Kumar Rai as stated above, the companysequential order issued to the appellant became inoperative and he was entitled to companytinue on his post of Junior Accounts Clerk by virtue of his appointment dated 21.12.1990. The Order dated 01.01.1993 was issued by the respondent No.1 which is to the following effect Accounts Officer, Office of District Basic Education officer, Azamgarh Order Number Accounts /199293 Date 01.01.93 Order of reappointment Consequent to passing stay order of the operation of Order dated 11.11.1992 passed by the Honble High Court at Allahabad in Writ Petition in Shri Shiv Kumar Rai Versus Director of Education Basic Nishatganj and others, Shri Rana Pratap Singh son of Shri Suryanath Singh is reappointed on temporary basis from the date of taking charge on the vacant post of Junior Accounts 27 of 39 Clerk till 27.02.1993. This appointment can be terminated at any time without any prior information. Shri Rana Pratap Singh is directed to take charge immediately on receipt of companyy of this order. Accounts Officer Office of District Basic Education Officer, Azamgarh. Endorsement Number Accounts/117 1240/199394 Dated 01.01.1993 Although in the order dated 01.01.1993, the order refers it as an order of reappointment but in essence the order is number an order of re appointment but order of reinstatement of appellant on the post which became available for the appellant after interim order passed in writ petition of Shiv Kumar Rai. The appellant was asked to go because of reversion of Shiv Kumar Rai on his original post by Order dated 11.11.1992. When the said order was stayed, the appellant 28 of 39 became entitled to companytinue on his post and numberorder of reappointment was necessary or required. The entitlement of appellant was by virtue of his earlier appointment. The reappointment order refers to appointment of the appellant till 27.02.1993. The initial appointment of the appellant dated 21.12.1992 which was made after regular selection was number limited to any period. The date of 27.02.1993 which was mentioned in the letter dated 01.01.1993 was only due to the reason that interim order granted to Shiv Kumar Rai on 27.11.1993 was only for a period of three months i.e. only upto the period till 27.02.1993 which date was mentioned in the order dated 01.01.1993. The interim order passed in the writ petition of Shiv Kumar Rai was companytinued by order dated 09.04.1993, which is to the following effect The interim order dated 27.11.92 is companytinued and the petitioner will be paid salary regularly. 29 of 39 Dated 09.04.1993 By companytinuance of interim order in favour of Shiv Kumar Rai automatically the order in favour of the appellant shall companytinue and there was numberquestion of his appointment being companye to an end. Learned Single Judge in the impugned judgment has taken the view that since the appointment of the appellant was only for limited duration till 27.02.1993, he has numberright to companytinue. Learned Single Judge lost sight of the fact that the date 27.02.1993 was mentioned in the letter dated 01.01.1993 because of the fact that interim order of Shiv Kumar Rai was only for the period of three months and when the interim order with regard to Shiv Kumar Rai by the High Court was companytinued, the appellant also had become entitled to companytinue. 30 of 39 Learned Single Judge, thus, companymitted error in number companyrectly appreciating the companysequence of order of the High Court dated 04.12.1992 in the first writ petition and nature of the letter dated 01.01.1993. We, thus, are of the view that letter dated 01.01.1993 cannot be said to be reappointment of the appellant. The order was in essence re instatement of the appellant in companysequence of his earlier appointment dated 21.12.1990. From the materials brought on record ,it is also clear that the Education Authorities has also treated the appointment of appellant companytinuing from 22.12.1990, which is clear from order of approval of increment dated 30.12.2000, Annexure RA6 and subsequent order issued by Finance and Accounts Officer where date of appointment of appellant has been mentioned as 21.12.1990. 31 of 39 IV Whether by dismissal of W.P.No.44384 of 1992 Shiv Kumar Rai Versus Director Basic Education and others on 15.09.2001 shall result in terminating the vacancy on the post of Junior Accounts Clerk on which appellant was appointed and was working? The Division Bench has dismissed the special appeal of the appellant solely relying on the fact that by dismissal of writ petition of Shiv Kumar Rai on 15.09.2001, the vacancy of post of Junior Accounts Clerk shall companye to an end. In the writ petition of Shiv Kumar Rai, interim order was passed on 27.11.1992 which was companytinued on 09.04.1993. It is submitted by the companynsel for the appellant that cancellation of promotion of Shiv Kumar Rai on 11.11.1990 too was on account of claim of promotion raised by another accounts clerk Mr.Ram Sinhasan Rai. It is submitted that Ram Sinhasan Rai retired in 1999. Ram Sinhasan Rai was never promoted and interim order in favour of Shiv Kumar Rai companytinued till 32 of 39 Ram Sinhasan Rai retired in the year 1999. It is submitted that writ petition of Shiv Kumar Rai has been dismissed as infructuous by efflux of time which is clearly mentioned in the order dismissing the writ petition. The writ petition of Shiv Kumar Rai was number dismissed on merits. Writ petition was dismissed as infructuous by efflux of time without determination of any issue. Shiv Kumar Rai companytinued to work on his promotional post till he retired on 29.02.2008. When Shiv Kumar Rai did number revert on post of Junior Accounts Clerk and companytinued to work till his retirement, the dismissal of writ petition as infructuous cannot altogether wipe out the right of the appellant to companytinue on his post of Junior Accounts Clerk on which post Shiv Kumar Rai never returned in fact. 33 of 39 The report dated 27.04.2017 of District Handicapped Public Development Officer, Azamgarh addressed to Collector, Azamgarh, has been brought on record with regard to promotion of Shiv Kumar Rai, in which following facts have been stated After inquiry, this fact came to light that the selection of Shri Singh has been made by the legally companystituted Selection Committee at the vacant post of Junior Accounts Clerk due to the promotion of Shri Shiv Kumar Rai at the post of Assistant Accountant in the department. A representation was submitted by Shri Ram Sinhasan Singh, Junior Accounts Clerk working in the office of Finance and Accounts Officer of Basic Education, Azamgarh stating that he is senior to Shri Rai. Therefore, on the basis of seniority, he be promotied at the post of Assistant Accountant. Shri Rai was reverted to the post of Junior Accounts Clerk by order dated 11.11.1992 of Finance and Accounts Officer, Basic Education Azamgarh. Stay Order was obtained by Shri Rai of the order of reversion by the Honble High Court of Allahabad by order dated 27.11.1992. The stay order dated 27.11.1992 was companytinued by order dated 09.04.1993. Shri Shiv Kumar Rai has retired from the 34 of 39 promoted post of Assistant Accountant on 29.02.2008. Shri Rai and Shri Sinhasan Singh both have retired from their posts. After retirement, the case of mutual seniority has finished. Resultantly the lien tenure of Shri Rana Pratap Singh at the post of Junior Accounts Clerk remained as earlier In the rejoinder affidavit which was filed in the special Appeal, the report dated 27.04.2017 has been brought on record as Annexure RA14. High Court dismissed the special Appeal on 06.02.2018 solely relying on dismissal of writ petition of Shiv Kumar Rai on 15.09.2001. No exception can be taken to the legal position as enumerated by the Division Bench of the High Court in paragraphs 9 to 13. However, the Division Bench ought to have looked into the ground realities, facts, and subsequent events also. When Shiv Kumar Rai was never reverted on 35 of 39 his post and companytinued on his promotional post till his retirement, it will be taking a too technical view that vacancy of his original post shall companye to an end by dismissal of the writ petition. More so, the writ petition was dismissed as infructuous on efflux of time without an adjudication on merits and without High Court being made aware of the subsequent events. The Division Bench did number advert to the other aspects of the matter which were adverted to by the learned Single Judge, without examining the companyrectness of the view taken by learned Single Judge, the Division Bench had dismissed the appeal solely relying on dismissal of above writ petition of Shiv Kumar Rai. Learned companynsel for the respondents had also submitted that the companyduct of the appellant is number such that he may be entitled for any relief. It is 36 of 39 submitted that when the writ petition was dismissed by learned Single Judge on 02.02.2012 and special appeal came to be dismissed on 06.02.2018, the appellant was number entitled to companytinue or receive any salary. He submits that he had companycealed the dismissal of writ petition from the department. A perusal of the order of the High Court dated 02.02.2012 indicates that learned companynsel for the parties were heard. The order dated 02.02.2012 was number an ex parte order and the appellant immediately filed an special appeal which is numbered as Special Appeal No.432 of 2012. The arguments of the respondents cannot be accepted that the appellant companycealed dismissal of writ petition from learned Single Judge. More so, the appellant was allowed companytinued by the respondents on his post and by order dated 01.08.2012, an 37 of 39 order of companyfirmation was also passed by the Department companyfirming him on the post of Junior Accounts Clerk from 22.12.1990 and on the post of Assistant Accountant w.e.f. 22.12.2004. The appellant was also given promotional scale of Assistant Accountant w.e.f. 22.12.2004. The Department having companytinued the appellant and granted him promotion and companyfirmation, It cannot be said that the appellant companymitted any companycealment or misrepresentation. We further numberice that appellant has been companytinuing on his post for the last twenty six years and even after dismissal of writ petition of Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 195556 of 1980. From the Judgment and Order dated 3/4th July, 1979 of the Bombay High Court in Spl. C.A. Nos. 2052 of 1973 and 132 of 1974. S. Nariman, Anil B. Diwan, P.H. Parekh, Ms. Lata Krishnamurthy and S. Dutt with for the Appellants. M. Tarkunde and H.G. Advani, Hira Advani Kailash Vasudev, Joel Peres and D.N. Misra for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals, by special leave, by the landlords are directed against the judgment and order of the High Court of Bombay dated 3/4th July, 1979. Two questions arise for companysideration in these appeals-- i whether the structure companystructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant ii what is the scope and extent of the jurisdiction of the High Court under Article 227 of the Constitution on questions of facts found by the appellate bench of Small Causes Court. In order to appreciate these questions, it is necessary to reiterate the relevant facts. The second appellant being plaintiff number 2 in the Original Suit leased out the premises involved herein being a godown measuring 11,500 sq. ft. at 156 A, Tardeo, Bombay-7. The said premises was given by the landlord to the tenant, the respondent herein-M s Bright Brothers Pvt. Ltd. on lease vide the registered lease dated 14th April, 1947 for a period of ten years companymencing from 1st September, 1946. By 1953, the respondent companypany began to fall into arrears in payment of rent. The respondent-tenant filed an application before the appropriate Rent Court for fixing the standard rent. On 14th June, 1958, the advocate of the second appellant sent a numberice to the respondent-tenant calling upon them to pay up the arrears for the period from September, 1956 to May, 1958 both months inclusive , as well as for earlier arrears of rent of Rs.20,850. On 1st December, 1958 a second numberice was issued on behalf of the original plaintiff number 1 calling upon the respondent to quit and vacate the premises in question on the grounds, inter alia, a unauthorised companystruction of permanent nature b obstructing roadways and c the damage to walls and floor, and further called upon them to remove the unauthorised companystruction and restore the suit premises to its original companydition. Inasmuch as the main factual companytroversy in those appeals relate to the nature of the companystruction alleged to have been made by the tenant, it is relevant to set out what was stated in that letter. It was, inter alia, stated that the tenant had unauthorisedly companymitted several breaches of the terms and companyditions of the lease inasmuch as the tenant had erected unauthorised companystruction of a permanent nature and carried out additions to the demised premises without the companysent of the lessor or the receiver. It was further alleged that in breach of the terms and companyditions of the agreement of tenancy and without the companysent of the lessor or the receiver, the tenant had occupied portion of the land number let out to him by obstructing the lessor and the person entitled to use the same and had made companystruction on the roadway by obstructing and restricting the passage. It was further alleged that the tenant had unauthorisedly and without permission dug up and mutilated the floors of the premises let out to the tenant and had companystructed companytrary to the provisions of section 108 0 of the Transfer of Property Act, 1882. The tenant was called upon to remove the said unauthorised structures and restore the property, and it was further numberified that failing which the landlord would be companypelled to take proceedings. A reply to the said numberice issued by the Court Receiver was sent on 8th December, 1958 from the respondent companypanys advocate saying that the companystruction companyplained of had taken place with the companysent and full knowledge of the appellant and the respondent companypany had spent thousands of rupees towards the improvement of the suit premises. Further in reply to the allegation of damage to the property, the respondent companypany had alleged that it had in fact improved the property of the appellant. On or about 20th December, 1958, the advocate for the appellant replied to the above letter once again calling upon the respondent companypany to vacate the demised premises. In 1959, the standard rent application being R.A. No. 2214 of 1954 mentioned hereinbefore was dismissed. Thereupon, the respondent-tenant filed a civil revision application. The appellant filed a suit being suit number 1450/83 18 of 1959 on or about 31st July, 1959. On or about 8th December, 1965, the appellant made an application for amendment of the plaint to include change of user as an additional ground of eviction. The respondent also made an application for amendment to the effect that permanent structure had been made with the knowledge and companysent of the appellant. The said amendments were allowed in December, 1965. On or about 31st March, 1967, the trial companyrt in suit number 1450/ 8318 of 1959, ordered eviction of the tenant on the ground of permanent companystruction. Mesne profit from the date of the decree was also ordered. There was an appeal to the appellate bench before the CoUrt of Small Causes and cross appeal being appeal number. 323 and 629 of 1967. By the judgment delivered on 14th June, 1973, the division bench of the Court of Small Causes companyfirmed the decree for eviction on the ground of permanent companystruction and granted eviction on change of user as well in the cross objection filed by the appellant. It also ordered mesne profit from the date of the suit and the monetary claims to the extent of arrears. The High Court on or about 3/4th July, 1979, by judgment and order of the High Court in SCA 2052 and 174 of 1974 under Articles 226 and 227 of the Constitution reversed the companycurrent findings of the companyrts below and allowed the respondent companypanys application. Being aggrieved therefrom, the appellants, the landlords have companye up in appeal to this Court. It is, first necessary therefore to companysider the nature of the structures made and whether these were permanent or number. As stated hereinbefore that permanent structures were companystructed was held by the two companyrts companycurrently, namely the Judge of the Court of Small Causes as well as the Appellate Bench of the Small Causes Court whether by such companystruction there has been change of user is another question. On the nature of the companystruction, it is necessary to refer to the decision of the trial companyrt. The main question, however, in these appeals is the jurisdiction of the High Court to interfere with the findings of this nature under Article 227 of the Constitution. The principles are well-settled. Their application, however, in particular cases sometimes present difficulties. But the quest for certain amount of certitude must companytinue in this field of uncertain minds and imperfect language. To the facts, therefore, we must number refer to appreciate the application of law involved in this case. The premises in question was let out for use exclusively for business of manufacture of plastic articles, wood work and paints only and number for any other purpose. it is alleged that it is numberlonger used for that purpose but used as an office and storage. The trial companyrt in this case was the Court of Small Causes, Bombay. One of the grounds of ejectment was the erection of permanent structure and it was the case of the appellant number 2 that such erection was against the provisions of section 13 1 b of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1974 hereinafter called the Rent Act . Under clause p of section 108 of the Transfer of Property Act, 1882, a lessee may number without the lessors companysent erect on the property and permanent structure except for agricultural purposes. If he does, then this becomes a ground for ejectment. In this case the permanent structures alleged were companystructions of lofts, companystruction of several rooms and companystruction of and laying of a new and permanent flooring as appears from the plaint filed in the proceedings. It further appears that the tenant had sunk in pillars and stanchions into the flooring. it was stated in the deposition that these pillars and stanchions mentioned in the plaint were only those which were the posts supporting the cabins and lofts companyplained of and numbere else. These pillars and stanchions went along with the companystruction of lofts and companystruction of several rooms, that is cabins. The learned trial companyrt discussed the details and found those cabins marked A, B, C, D, E, F, G, H, I, J, K, L etc. There were lofts marked cabins A, B, C, D, E, F, J, K, other lofts marked as F, G, H and I. The third loft over the cabin at L and the lofts over the portions M N. These were, according to the engineer, an architect, Shri Divecha, who was examined on behalf of the plaintiff, permanent structures. The learned judge examined the plan prepared by the said architect and his deposition. The learned judge was of the view that it was clear from the architects evidence that lofts A, B, C, D, E, J, K. as well as the lofts over F, G, H and I were meant to carry weight of over 100 Ibs. per sq. ft. and this statement according to the learned judge was number challenged in the cross-examination. The structures over A, B, C, D, E, J. and F.C.H.I cannot therefore be called only roofs or tops of cabins. They were numberhing but lofts. The structures A, B, C, D, E, K, J. so also F, G, H, I, L M were admitted to have been companystructed by the tenant after it had taken the premises from the landlord. The learned judge in his judgment has also numbered these various facts as to their length and dimensions. He referred extensively to the evidence in the plan which was marked Ex. MI and the deposition of Shri Divecha. The learned Judge taking these factors into companysideration came to the companyclusion that the cabin lofts and posts supporting the same were attached to the flooring as well as the walls and companyumns of the main structures. Under these circumstances, the learned judge of the Court of Small Causes was of the opinion that the structures were permanent in nature. The learned judge, however, held that the landlord had failed to prove that the tenant had put up any permanent flooring at some part of the suit premises as alleged. The next allegation was that the tenants had demolished a portion of the wall in between the two rooms and prepared a door at that opening. After discussing the facts and the evidence, the learned judge was of the view that there was numberquestion of any waste of the plaintiffs property on account of any demolition. He, however, had held that so far as cabins, lofts and posts supporting the same by pillars, these were numberhing but permanent structures. So far as the digging of the flooring was companycerned, after discussing the evidence the learned judge held that the plaintiffs had failed to prove digging which led to waste of the property of the landlord. So far as the creation of the permanent structure is companycerned, the same breached the terms of tenancy. The learned judge numbered that on 1st January, 1948 the defendant number 1 wrote to the plaintiff that the height of the wooden partition they were erecting, was specified within the plan sent along with the aforesaid letter which had already been lying ready for erection. It was companytended by the defendants in their written statements that they had obtained companysent in respect of the wooden cabins and partitions in the year 1948. So far as section 13 1 b of the Bombay Rent Act is companycerned, there cannot be any waiver operating against the plaintiffs. It was the case that some of the permanent structures were there before 1947. On examination of the evidence, the learned judge observed that Mr. Dsilva had stated that the tenant had requested Mahindra Mahindra for a design of a slotted angle cabin with a loft, that the same was supplied and Mr. Dsilva was the designer who did the work. Analysing all these evidence, the learned trial judge came to the companyclusion that permanent structures were carried out without the companysent in writing of the landlords or either of them. Such permanent structure was outside the tenancy and the landlord had number given any companysent. The matter on this issue went up before the appellate companyrt and the appellate companyrt dealt with this again and discussed these allegations. It was pointed out by the appellate companyrt that the allegations were that the appellants had a made an opening by demolishing a part of the wall dividing the two portions of the demised premises b companystructed lofts in the suit-premises, c dug upon the flooring of the premises at various places, d sunk in pillars and stanchions into the flooring, e companystructed several rooms and laid new and permanent floorings in parts of the demised premises at different levels. So far companystructing lofts, it was held that these lofts had been companystructed after 1st September, 1946. And in this companytext the companystruction of cabins and putting up of pillars were companysidered and the evidence in this respect was taken into companysideration. It was companytended that the demised premises in the lease was described as godown but it was taken in the nature of several office premises and the change in the improvement done to the same was merely for the better enjoyment of demised premises. In the first place the cabins were made of wooden poles and planks fixed in the floor, and side walls of the building with nails, screws, nuts and bolts. The appellate companyrt came to the companyclusion that applying the proper test, the cabins were substantial structures and substantial improvement to the premises. These were durable for long and intended to be used permanently. The appellate companyrt also took the question of digging and other relevant allegations. As a result of analysis of these evidence and materials, the appellate companyrt companyfirmed the findings of the trial companyrt that the tenant had erected permanent structure on the demised premises without the landlords companysent and that was a breach of the terms of tenancy. They also companyfirmed the finding of the trial companyrt that the respondents did number waive their rights arising out of these acts. They also upheld the finding that there was numberrenewal of the lease of the landlords and the tenants were number statutory tenants whose companytractual tenancy had companye to an end by efflux of time by the end of the period of ten years from 1st September, 1946. They upheld the decree for possession passed by the trial companyrt. The High Court dealing with this matter under Article 227 of the Constitution had occasion to refer to this aspect. The High Court referred to the different authorities on this point. We may briefly take numbere of some of these. In this companynection reference may be made to a decision of the Special Bench of the Calcutta High Court in the case of Surya Properties Private Ltd. and others v. Bimalendu Nath Sarkar and others. A.I.R. 1964 Calcutta p. 1 which dealt with clause p of section 108 of the Transfer of Property Act, 1882 and held that this question was dependent on the facts of each case and numberhard and fast rule can be laid down with regard to this matter. In the absence of any relevant materials, therefore, the Full Bench found that numberanswer companyld be given. in a slightly different companytext, before Calcutta High Court in the case of M s Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar. A.I.R. 1965 Calcutta page 408, Chatterjee, J., one of the judges of the Division Bench observed that the phrase permanent structure for purposes of clause p of section 108 of the Transfer of Property Act meant a structure which was capable of lasting till the term of the lease and which was companystructed in the view of being built up as was a building. In that companytext the learned judge observed that a reservoir was number, however, a permanent structure for purposes of clause p of section 108 of the Transfer of Property Act. Sen, J. of the same Bench was of the view that numberhard and fast tests companyld be laid down for determining the question whether a particular structure by the tenant was a permanent structure for the purpose of clause p of section 108 of the Transfer of Property Act. The answer to the question depended on the facts of each case. Chatterjee, J., however, took the view that where the tenant created a permanent structure in the premises leased to him, as the lease companytinued in spite of the disputed structure and the landlord companytinued to receive rent till the determining of the lease by numberice to quit or thereafter till the passing of the decree for eviction and the fact that he accepted rent with full knowledge of the disputed structure did number disentitle him to a decree for eviction. In Khureshi Ibrahim Ahmed v. Ahmed Haji Khanmahomad. I.R. 1.965 Gujarat, 152, in companynection with section 13 1 b of the Rent Act, Gujarat High Court held that the permanent structure must be one which was a lasting structure and that would depend upon the nature of structure. The permanent or temporary character of the structure would have to be determined having regard to the nature of the structure and the nature of the materials used in the making of the structure and the manner in which the structure was erected and number on the basis of how long the tenant intended to make use of the structure. As a matter of fact, the Court observed, the nature of the structure itself would reflect whether the tenant intended that it should exist and be available for use for a temporary period or for an indefinite period of time. The test provided by the Legislature was thus an objective test and number a subjective one and once it was shown that the structure erected by the tenant was of such a nature as to be lasting in duration-lasting of companyrse according to ordinary numberions of mankind--the tenant cannot companye forward and say that it was erected for temporary purpose. The question was again companysidered in the case of Ramji Virji and others v. Kadarbhai Esufali, A.I.R. 1973 Gujarat It was observed that whether the structure was a permanent structure was a mixed question of law and fact. It was held in that case that alterations made by a tenant like companystructing loft, wooden bathroom, frame and putting up a new drain being minor alterations which were easily removable without causing any serious damage to the premises would number amount to permanent structure leading to the forfeiture. There are numerous authorities dealing with the question how the structure is a permanent structure or number should be judged. It is number necessary to deal with all these. One must look to the nature of the structure, the purpose for which it was intended and take a whole perspective as to how it affects the enjoyment, the durability of the building etc. and other relevant factors and companye to a companyclusion. Judged in the aforesaid light on an analysis of the evidence the trial companyrt as well as the appellate companyrt had held that the structures were permanent. The High Court observed that in judging whether the structures were permanent or number, the following factors should be taken into companysideration referring to an unreported decision of Malvankar J. in special civil application No. 121 of 1968. These were 1 intention of the party who put up the structure 2 this intention was to be gathered from the mode and degree of annexation 3 if the structure cannot be removed without doing irrepairable damage to the demised premises then that would be certainly one of the circumstances to be companysidered while deciding the question of intention. Likewise, dimensions of the structure and 4 its removability had to be taken into companysideration. But these were number the sole tests. 5 the purpose of erecting the structure is another relevant factor. 6 the nature of the materials used for the structure and 7 lastly the durability of the structure. These were the broad tests. The High Court applied these tests. So had the Trial Court as well as the appellate bench of Court of Small causes. All the relevant factors had been borne in mind by the learned trial judge as well as appellate bench of the Court of Small Causes. Therefore, simply because another view is possible and on that view a different view is taken, will be interfering under jurisdiction under Article 227 of the Constitution which is unwarranted. The High Court was impressed by the fact that having regard to the facts and circumstances of the case and further more for efficient and companyplete enjoyment of the demised premises and for carrying out the business of manufacturing plastic goods, these structures had been companystructed by the tenant temporarily. According to the High Court, the nature of the materials used and the intention of the tenant were relevant and according to the High Court, these structures companyld be removed without doing appreciable damage to the demised premises and these indicated that these were intended to be part and parcel of the numbermal part of the building. The High Court proceeded on the basis that the trial companyrt as well as the appellate bench of the Small Causes Court had relied wholly on the basis of evidence of the admission of one Mr. Pittie who had admitted that the landlord had knowledge of these factors. The other evidence, according to the High Court,. of the Divecha, DSilva, Kirtikar and Bhansali were number at all given proper and due weight. According to the High Court, the High Court had in such circumstances jurisdiction to deal with this matter and in exercise of the jurisdiction, as the High Court felt that relevant and material facts had been ignored, the High Court set aside the order of the companyrt of Small Causes, and set aside the landlords decree and restored the tenant in possession. As mentioned hereinbefore it is number necessary for our present purpose to decide whether plaintiffs witnesses were properly appreciated. We find all the relevant evidence had been examined by the trial judge as well as by the appellate bench of the companyrt of Small causes. We find relevant reference to the evidence of Divecha, and others. We find reference to the relevant evidence in the deposition at pages 56, 69, 71, 83, 93, to 95 by the trial companyrt as well as in pages 133-36, 152, 167, we find reference to the deposition at p. 56 of the trial companyrt and pages 62 to 63, as well as 65 to 71 and the Appellate Court at pages 134 and 147. Similarly the evidence of Dsilva who was an employee of Mahindra and Mahindra as also of Shri Kirtikar, were discussed. It is number necessary to refer in detail to these evidence. So far as to what extent the factors are structures have been exhaustively referred to in Surya Properties Private Ltd. and others v. Bimalendu Nath Barkar and others supra and M s Surya Properties Private Ltd. v. Bimalendu Nath Sarkar supra and in our opinion these lay down companyrect position in law. As a matter of fact the tenant is numberlonger carrying on any business there but one Messrs Quality Plastics is carrying on the business. Therefore the original purpose is gone. In this companynection reference may be made to Annexure IV appearing at page 428 of the Paper Book which is a letter dated both July, 1964 written by the Concord of India Insurance Company Limited to the Secretary. The Insurance Association of India where it was stated clearly that Bright Brothers Pvt. had shifted to Bhandup as from 29th April, 1963 and at the relevant time, they had only their Administrative Officer there and they were stocking finished goods in the premises in question. Further, they have recently installed their Associate Companys factory in the said block working under the name of M ,s. Quality Plastics in the premises in question. Therefore, in view of the fact that large sum had been spent and companysidering the standard and the nature of the companystruction and lack of easy removability and the degree of an annexation to the enjoyment for the original purpose, we are of the opinion that the learned judge as well as appellate bench of the companyrt of Small Causes had applied the companyrect principles and came to a plausible companyclusion. About the removability of the structure, the High Court was bound by the finding of the appellate authority which appears at page 341 to 344 of the Paper Book. In a case of this nature, the High Court found that they had to enter into this question to find the real position whether the proper principles had been companyrectly borne in mind. It is indisputable that the finding that has to be arrived at by the companyrt in this case is a mixed question of law and fact. Therefore, if the basic factors, for example, there was number proper appreciation of the evidence, if the assumption that lofts per se were number permanent structures then the companyrts below might be said to have companymitted error apparent on record and numbercourt instructed in law companyld take such a view. But if all the relevant factors have been borne in mind and companyrect legal principles applied then, right or wrong, if a view has been taken by the appellate companyrt, in our opinion, interference under Article 227 of the Constitution was unwarranted. Interference by the High Court under Article 227 of the Constitution must be within limits. This question has been companysidered by this Court from time to time and principles laid down. This Court in Ganpat Ladha v. Sashikant Vishnu Shinde, 1978 3 SCR 198 expressed the view that the High Court companymits a gross error in interfering with what was a just and proper exercise of discretion by the Court of Small Causes, in exercise of its power under Article 227 of the Constitution. This was unwarranted. The High Court under Article 227 has a limited jurisdiction. It was held in that case that a finding as to whether circumstances justified the exercise of discretion or number, unless clearly perverse and patently unreasonale, was, after all a finding of fact and it companyld number be interfered with either under Article 226 or 227 of the Constitution. If a proper companyrt has companye to the companyclusion on the examination of the nature of the structure, the nature of the duration of structure, the annexation and other relevant factors that the structures were permanent in nature which were violative of section 13 1 b of the Rent Act as well as section 108 clause p of Transfer of Property Act and such a finding, is possible, it cannot be companysidered to be perverse. In such a situation, the High Court companyld number have and should number have interfered. In India Pipe Fitting Co. v. Fakruddin M.A. Bakar and Anr., 1978 1 SCR 797, this Court reiterated that the limitation of the Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset the companyclusions of facts, however., erroneous these may be. It is possible that another Court may be able to take a different view of the matter by appreciating the evidence in a different manner, if it determinedly chooses to do so. That will number be justice administered according to law to which Courts are companymitted numberwithstanding dissertation in season and out of season, about philosophies. In that case, the Court found that the High Court had arrogated to itself the powers of the appellate companyrt. As early in 1959, in Satyanarayan Laxminarayan Hegde and Others v. Millikarjun Bhavanappa Tirumale, 1960 1 SCR 890, this Court found that in that case on the materials available before it that the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal was one apparent on the face of the record so as to be capable of being companyrected by a writ of certiorari and an error which had to be established by a long drawn process of reasoning on points where there may companyveivably be two opinions cannot be said to be an error apparent on the face of the record. There might have been error in the judgment of the appellate bench of the Court of Small Causes but it is number an error palpable and apparent, right or wrong they had companye to that companyclusion. That was possible or plausible companyclusion. In Mrs. Labhkuwar Bhagwani Shah and Others v. Janardhan Mahadeo Kalan and Another, 1982 3 SCC 5 14, this Court reiterated that companycurrent finding of facts whether relating to jurisdictional issue or otherwise were number open to interference by the High Court under Article 227 of the Constitution. This Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, 1986 4 SCC p. 447 held that in exercise of jurisdiction under Article 227 of the Constitution, the High Court can go into the questions of facts or look into the evidence if justice so requires it. But the High Court should decline to exercise its jurisdiction under Article 226 and 227 of the Constitution to look into the facts in the absence of clear cut-down reasons where the question depends upon the appreciation of evidence. The High Court should number interfere with a finding within the jurisdiction of the inferior tribunal or companyrt except where the finding is perverse in law in the sense that numberreasonable person properly instructed in law companyld have companye to such a finding or there is misdirection in law or view of fact has been taken in the teeth of preponderance of evidence or the finding is number based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has numberjurisdiction. In this instant case the tests laid down have number been transgressed by the companyrt of Small Causes both trial companyrt as well as the appellate bench. The view it took was a possible view. A different view might have been taken out that is numberground which would justify the High Court to interfere with the findings. In that view of the matter, we allow the appeals, set aside the judgment and order of the High Court and restore the order of the appellate bench of Court of Small Causes dated 4th June, 1973. There will be an order for possession and mesne profits as directed by the Court of Small Causes. The respondents will pay the companyt of these appeals.

ALTAMAS KABIR, CJI. 1 1. The Petitioner herein was a candidate in the Presidential elections held on 19th July, 2012, the results whereof were declared on 22nd July, 2012. The Petitioner and the Respondent were the only two duly numberinated candidates. The Respondent received votes of the value of 7,13,763 and was declared elected to the Office of the President of India. On the other hand, the Petitioner received votes of the value of 3,15,987. The Petitioner has challenged the election of the Respondent as President of India on the ground that he was number eligible to companytest the Presidential election in view of the provisions of Article 58 of the Constitution of India, which is extracted hereinbelow - Qualifications for election as President.- 1 No person shall be eligible for election as President unless he - a is a citizen of India, b has companypleted the age of thirty-five years, and c is qualified for election as a member of the House of the People. A person shall number be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the companytrol of any of the said Governments. Explanation.-For the purposes of this article, a person shall number be deemed to hold any office of profit by reason only that he is the President or Vice President of the Union or the Governor of any State or is a Minister either for the Union or for any State. According to the Petitioner, at the time of filing the numberination papers as a candidate for the Presidential elections, the Respondent held the Office of Chairman of the Council of Indian Statistical Institute, Calcutta, hereinafter referred to as the Institute, which, according to him, was an office of profit. It appears that at the time of scrutiny of the numberination papers on 2nd July, 2012, an objection to that effect had been raised before the Returning Officer by the Petitioners authorized representative, who urged that the numberination papers of the Respondent were liable to be rejected. In response to the said submission, the representative of the Respondent sought two days time to file a reply to the objections raised by the Petitioner. Thereafter, on 3rd July, 2012, a written reply was submitted on behalf of the Respondent to the objections raised by the Petitioner before the Returning Officer, along with a companyy of a resignation letter dated 20th June, 2012, whereby the Respondent claimed to have resigned from the Chairmanship of the Institute. A reply was also filed on behalf of the Respondent to the objections raised by Shri Charan Lal Sahu. The matter was, thereafter, companysidered by the Returning Officer at the time of scrutiny of the numberination papers on 3rd July, 2012, when the Petitioners representative even questioned the genuineness of the resignation letter submitted by the Respondent to the President of the Council of the Institute, Prof. M.G.K. Menon. Having companysidered the submissions made on behalf of the parties, the Returning Officer, by his order dated 3rd July, 2012, rejected the Petitioners objections as well as the objections raised by Shri Charan Lal Sahu, and accepted the Respondents numberination papers. Accordingly, on 3rd July, 2012, the Petitioner and the Respondent were declared to be the only two duly numberinated candidates for the Presidential election. Immediately after the rejection of the Petitioners objection to the Respondents candidature for the Presidential elections, on 9th July, 2012, a petition was submitted to the Election Commission of India, under Article 324 of the Constitution, praying for directions to the Returning Officer to re-scrutinize the numberination papers of the Respondent and to decide the matter afresh after hearing the Petitioner. The Election Commission rejected the said petition as number being maintainable before the Election Commission, since all disputes relating to Presidential elections companyld be inquired into and decided only by this Court. Thereafter, as indicated hereinabove, the Presidential elections were companyducted on 19th July, 2012, and the Respondent was declared elected to the Office of the President of India on 22nd July, 2012. Aggrieved by the decision of the Returning Officer in accepting the numberination papers of the Respondent as being valid, the Petitioner has questioned the election of the Respondent as the President of India under Article 71 of the Constitution read with Order XXXIX of the Supreme Court Rules, 1966, and, in particular, Rule 13 thereof. The said Rule, which is relevant for a decision in this petition, reads as follows - Upon presentation of a petition the same shall be posted before a bench of the Court companysisting of five Judges for preliminary hearing and orders for service of the petition and advertisement thereof as the Court may think proper and also appoint a time for hearing of the petition. Upon preliminary hearing, the Court, if satisfied, that the petition does number deserve regular hearing as companytemplated in Rule 20 of this Order may dismiss the petition or pass any appropriate order as the Court may deem fit. Emphasis supplied In keeping with the provisions of Rule 13 of Order XXXIX of the Supreme Court Rules, 1966, which deals with Election Petitions under Part III of the Presidential and Vice-Presidential Elections Act, 1952, the Election Petition filed by the Petitioner was listed for hearing on the preliminary point as to whether the petition deserved a hearing, as companytemplated by Rule 20 of Order XXXIX, which provides as follows Every petition calling in question an election shall be posted before and be heard and disposed of by a Bench of the Court companysisting of number less than five Judges. Mr. Ram Jethmalani, learned Senior Advocate, appearing for the Petitioner, submitted that the Respondents election as President of India, was liable to be declared as void mainly on the ground that by holding the post of Chairman of the Indian Statistical Institute, Calcutta, on the date of scrutiny of the numberination papers, the Respondent held an office of profit, which disqualified him from companytesting the Presidential election. Mr. Jethmalani urged that apart from holding the office of the Chairman of the aforesaid Institute, the Respondent was also the Leader of the House in the Lok Sabha which had been declared as an office of profit. Urging that since the Respondent was holding both the aforesaid offices, which were offices of profit, on the date of filing of the numberination papers, the Respondent stood disqualified from companytesting the Presidential election in view of Article 58 2 of the Constitution. Mr. Jethmalani submitted that Article 71 of the Constitution provides that all doubts and disputes arising out of or in companynection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision is to be final. Mr. Jethmalani submitted that there were sufficient doubts to the Respondents assertion that on the date of filing of his numberination papers, he had resigned both from the office of Chairman of the Indian Statistical Institute, Calcutta, and as the Leader of the House in the Lok Sabha, on 20th June, 2012. Mr. Jethmalani urged that the doubt which had been raised companyld only be dispelled by a full-fledged inquiry which required evidence to be taken and cross-examination of the witnesses whom the Respondent might choose to examine. Accordingly, Mr. Jethmalani submitted that the instant petition would have to be tried in the same manner as a suit, which attracted the provisions of Section 141 of the Code of Civil Procedure, which reads as follows Miscellaneous Proceedings. - The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Explanation In this Section the expression proceedings includes proceedings under Order IX, but does number include any proceeding under Article 226 of the Constitution. In addition, learned companynsel also referred to Rule 34 of Order XXXIX of the Supreme Court Rules, 1966, which provides as follows - Order XXXIX, Rule 34 Subject to the provisions of this Order or any special order or direction of the Court, the procedure of an Election Petition shall follow as nearly as may be the procedure in proceedings before the Court in exercise of its Original Jurisdiction. Mr. Jethmalani pointed out that in the Original Jurisdiction of the Supreme Court, provided for in Order XXII of the Supreme Court Rules, 1966, the entire procedure for institution and trial of a suit has been set out, providing for all the different stages in respect of a suit governed by the Code of Civil Procedure. Mr. Jethmalani submitted that the making of the procedure for trial of Election Petitions akin to that of the Original Jurisdiction of the Supreme Court, was a clear indication that the matter must be tried as a suit, if under Rule 13 of Order XXXIX, the Court companysisting of 5 Judges was satisfied at a preliminary inquiry that the matter deserved a regular hearing, as companytemplated in Rule 20 of the said Order. For the sake of companyparison, Mr. Jethmalani referred to Section 87 of the Representation of the People Act, 1951, laying down the procedure for the trial of Election Petitions and providing that every Election Petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Mr. Jethmalani urged that in matters relating to election disputes it was the intention of the Legislature to have the same tried as regular suits following the procedure enunciated in Section 141 C.P.C. Mr. Jethmalani then drew our attention to Article 102 of the Constitution and, in particular, Clause 1 1 a thereof, which, inter alia, provides as follows - 102. 1 A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament a if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law number to disqualify its holder b c d e Explanation For the purposes of this clause a person shall number be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. Mr. Jethmalani submitted that language similar to the above, had been incorporated in Article 58 2 of the Constitution, which also provides that a person shall number be eligible for election as President, if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority, subject to the companytrol of any of the said Governments. Mr. Jethmalani submitted that as in Explanation to Article 102, the Explanation to Clause 2 of Article 58 also indicates that a person shall number be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State. Mr. Jethmalani urged that Article 102 cannot save a person elected to the Office of President from disqualification, if he holds an office of profit. Mr. Jethmalani submitted that from the annexures to the affidavit filed on behalf of the Respondent it was highly doubtful as to whether the Respondent had actually resigned from the post of Chairman of the Institute on 20th June, 2012, or even from the Membership of the Congress Party, including the Working Committee, and from the office of the Leader of the Congress Party in Lok Sabha on the same date, as companytended by him. Mr. Jethmalani submitted that from the companyy of the letter addressed to Professor M.G.K. Menon, President of the Institute, it companyld number be ascertained as to whether the endorsement made by Professor Menon amounted to acceptance of the Respondents resignation or receipt of the letter itself. Learned companynsel urged that this was another case of doubt within the meaning of Article 71 of the Constitution of India which required the Election Petition to be tried as a suit for which a detailed hearing was required to be undertaken by taking evidence and allowing for crossexamination of witnesses. It was also submitted that the expression office of profit has number been companyclusively explained till today under the Presidential and Vice- Presidential Elections Act, 1952, number any other pre-independence statute, and the same required to be resolved by this Court. In this regard, Mr. Jethmalani referred to the decision of a three-Judge Bench of this Court in the case of Shibu Soren Vs. Dayanand Sahay Ors. 2001 7 SCC 425, in which the aforesaid expression came to be companysidered and in interpreting the provision of Articles 102 1 a and 191 1 a , this Court held that such interpretation should be realistic having regard to the object of the said Articles. It was observed that the expression profit companynotes an idea of some pecuniary gain other than companypensation. Neither the quantum of amount paid, number the label under which the payment is made, may always be material to determine whether the office is one of profit. This Court went on further to observe that mere use of the word honorarium cannot take the payment out of the companycept of profit, if there is some pecuniary gain for the recipient. It was held in the said case that payment of an honorarium, in addition to daily allowances in the nature of companypensatory allowances, rent-free accommodation and chauffeur driven car at State expense, were in the nature of remuneration and is a source of pecuniary gain and, hence, companystituted profit. Mr. Jethmalani urged that it was on the basis of such observation that the Election Petition in the said case was allowed. Mr. Jethmalani also referred to the decision of this Court in the case of Jaya Bachchan Vs. Union of India Ors. 2006 5 SCC 266, wherein also the phrase office of profit fell for interpretation within the meaning of Article 102 and other provisions of the Constitution with regard to use of the expression honorarium and its effect regarding the financial status of the holder of office or interest of the holder in profiting from the office. It was observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other than reimbursement of out-of-pocket actual expenses, and number whether the person actually received monetary gain or did number withdraw the emoluments to which he was entitled. The three-Judge Bench, which heard the matter, held that an office of profit is an office which is capable of yielding profits of pecuniary gain and that holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or number-compensatory allowance is attached, is holding an office of profit. However, the question whether a person holds an office of profit has to be interpreted in a realistic manner and the nature of the payment must be companysidered as a matter of substance rather than of form. Their Lordships further observed that for deciding the question as to whether one is holding an office of profit or number, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and number whether the person actually obtained any monetary gain therefrom. In the same companynection, reference was also made to the decision of this Court in M.V. Rajashekaran Ors. Vs. Vatal Nagaraj Ors. 2002 2 SCC 704, where also the expression office of profit fell for companysideration. Mr. Jethmalani urged that having regard to the above, the Election Petition deserved a regular hearing, as companytemplated in Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. Appearing for the Respondent, Mr. Harish Salve, learned Senior Advocate, submitted that election to the office of the President of India is regulated under the provisions of the Presidential and Vice-Presidential Act, 1952, hereinafter referred to as the 1952 Act, and, in particular Part III thereof, which deals with disputes regarding elections. Mr. Salve pointed out that Sections 14 and 14A of the Act specifically vest the jurisdiction to try Election Petitions under the 1952 Act with the Supreme Court, in the manner prescribed in the said sections. Accordingly, the challenge to a Presidential election would have to be in companypliance with the provisions of Order XXXIX of the Supreme Court Rules, 1966, which deals with Election Petitions under Part III of the 1952 Act. Rule 13 of Order XXXIX of the Supreme Court Rules, therefore, becomes applicable and it enjoins that upon presentation of an Election Petition, the same has to be posted before a Bench of the Court companysisting of five Judges, for preliminary hearing to satisfy itself that the petition deserves a regular hearing, as companytemplated in Rule 20. For the sake of reference, Sections 14 and 14A of the 1952 Act, are extracted hereinbelow - 14. 1 No election shall be called in question except by presenting an Election Petition to the authority specified in subsection 2 . The authority having jurisdiction to try an Election Petition shall be the Supreme Court. Every Election Petition shall be presented to such authority in accordance with the provisions of this Part and of the rules made by the Supreme Court under article 145. 14A. 1 An Election Petition calling in question an election may be presented on one or more of the grounds specified in subsection 1 of section 18 and section 19, to the Supreme Court by any candidate at such election, or a in the case of Presidential election, by twenty or more electors joined together as petitioners b in the case of Vice-Presidential election, by ten or more electors joined together as petitioners. Any such petition may be presented at any time after the date of publication of the declaration companytaining the name of the returned candidate at the election under section 12, but number later than thirty days from the date of such publication. Mr. Salve submitted that the numberination papers of the respective candidates had been scrutinized by the Returning Officer in accordance with the provisions of Section 5A of the 1952 Act. Referring to Sub-Section 3 of Section 5E, Mr. Salve submitted that after companypleting all the formalities indicated in Sub-Section 3 , the Returning Officer had accepted the numberination papers of the Respondent as valid, which, thereafter, gave the Respondent the right to companytest the election. Mr. Salve submitted that Section 14 of the 1952 Act was enacted under Clause 3 of Article 71 of the Constitution which provides that subject to the provisions of the Constitution, Parliament may by law regulate any matter relating to or companynected with the election of a President or Vice- President. Mr. Salve submitted that the election of the President and Vice- President has been treated on a different level in companyparison with the election of Members of Parliament and other State Legislatures. While Article 102 deals with election of Members to the House, Article 58 deals with the election of the President and the Vice-President of India, which has to be dealt with strictly in accordance with the law laid down in this regard. In support of his aforesaid companytention, Mr. Salve referred to a Seven-Judge Bench decision of this Court in the case of Charan Lal Sahu Vs. Neelam Sanjeeva Reddy 1978 2 SCC 500, where the alleged companyflict between Article 71 1 of the Constitution with Article 58 thereof was companysidered by this Court and it was held that Article 58 only provides for the qualification regarding the eligibility of a candidate to companytest the Presidential elections and had numberhing to do with the numberination of a candidate which required 10 proposers and 10 seconders. The provisions of Sections 5B and 5C of the 1952 Act were also companysidered and held number to be in companyflict with Article 14 of the Constitution. Article 71 3 of the Constitution was also seen to be a law by which Parliament companyld regulate matters companynected with the Presidential elections, including those relating to election disputes arising out of such an election. Relying on its own earlier judgments, the Honble Judges of the Bench held that there was numberforce in the attack to either Article 71 3 of the Constitution or the provisions of Sections 5B or 5C of the 1952 Act. The Petitioner, C.L. Sahu, had also challenged the election of Shri Giani Zail Singh as President of India and such challenge was repelled by this Court upon holding that the Petitioner had numberlocus standi to file the same. Mr. Salve lastly referred to the decision of this Court in Mithilesh Kumar Vs. R. Venkataraman Ors. 1987 Supp. SCC 692, wherein, on a similar question being raised, a five-Judge Bench of this Court reiterated its earlier views in the challenge made to the election of Shri Neelam Sanjeeva Reddy and Shri Giani Zail Singh as former Presidents of India. Mr. Salve then urged that since the provisions of Order XXXIX of the Supreme Court Rules framed under Article 145 of the Constitution had been so framed in accordance with Section 14 of the 1952 Act, the provisions of Section 141 of the Code of Civil Procedure companyld number be imported into deciding a dispute relating to a challenge to the election of the President. Mr. Salve submitted that Rule 13 of Order XXXIX of the Supreme Court Rules, 1966, stood substituted on 9th December, 1997, and the substituted provision came into effect on 20th December, 1997. In the Original Rule which came to be substituted, there was numberprovision for a preliminary hearing to be companyducted to establish as to whether the Election Petition deserved a regular hearing. However, in view of repeated and frivolous challenges to the elections of almost all of the Presidents elected, the need for such an amendment came to be felt so as to initially evaluate as to whether such an Election Petition, challenging the Presidential election, deserved a regular hearing. Mr. Salve then submitted that the post of Chairman of the Indian Statistical Institute, Calcutta, was number an office of profit as the post was honorary and there was numbersalary or any other benefit attached to the said post. Learned companynsel submitted that even if one were to accept the interpretation sought to be given by Mr. Ram Jethmalani that the office itself may number provide for any direct benefit but that there companyld be indirect benefits which made it an office of profit, the said post neither provides for any honorarium number was capable of yielding any profit which companyld make it an office of profit. Mr. Salve submitted that the law enunciated in the decisions cited by Mr. Ram Jethmalani in the case of Shibu Soren supra and Jaya Bachchan supra was good law and, in fact, the post which the Respondent was holding as Chairman of the Institute was number an office of profit, which would disqualify him from being eligible to companytest as a candidate for the office of President of India. As to the holding of the post of Leader of the House, Mr. Salve submitted that the holder of such a post is numbermally a Cabinet Minister of the Government and is certainly number an appointee of the Government of India so as to bring him within the bar of Clause 2 of Article 58 of the Constitution of India. In support of his companytention that the provisions of Section 141 CPC would number apply in the facts of this case, Mr. Salve referred to the decision of this Court in Mange Ram Vs. Brij Mohan Ors. 1983 4 SCC 36, wherein the Code of Civil Procedure and the High Court Rules regarding trial of an Election Petition, were companysidered, and it was held that where necessary, the provisions of the Civil Procedure Code companyld be applied, but only when the High Court Rules were number sufficiently effective for the purpose of the production of witnesses or otherwise during the companyrse of trial of the petition. Mr. Salve also referred to a three-Judge Bench decision of this Court in Ravanna Subanna Vs. G.S. Kaggeerappa AIR 1953 SC 653, which was a case from Mysore relating to the election of a Councilor under the Mysore Town Municipal Act, 1951. Of the two questions raised, one of the points was with regard to the question as to whether the Appellant therein companyld be said to be holding an office of profit under the Government thereby attracting the provisions relating to disqualification. On a plain meaning of the expression office of profit, Their Lordships, inter alia, observed that the word profit companynotes the idea of pecuniary gain and if there really was 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. Their Lordships went on further to observe as follows From the facts stated above, 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 Committee, he attends, is number meant to be a payment by way of remuneration or profit, but it is gain to him as a companysolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the Committee. 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 numberofficials, that the office of the Chairman or of the Members should carry any profit or remuneration. Mr. Salve urged that in the instant case as well, the post of Chairman of the Indian Statistical Institute, Calcutta, did number yield any profit to the holder of the post, which was entirely meant to be an honour bestowed on the holder thereof. Mr. Salve also referred to the decision of this Court in the case of Shibu Soren supra which had already been referred to by Mr. Ram Jethmalani, and pointed out that Article 102 1 a of the Constitution of India deals with disqualification from being chosen as a Member of the two Houses or from being a Member of either House of Parliament and did number affect the post of President of India. The last decision referred to by Mr. Salve in the above companytext was that of this Court in Madhukar G.E. Pankakar Vs. Jaswant Chobbildas Rajani 1977 1 SCC 70, where also the expression office of profit came to be companysidered. In paragraph 31 of the said decision, reference was made to the earlier decision of this Court in Ravanna Suvannas case supra and the ratio of the said decision was tested in relation to Insurance Medical Practitioners. It was held that the petitioner did derive profit, but the question was whether he held an office under the Government. Since mere incumbency in office is numberdisqualification, even if some sitting fee or insignificant honorarium is paid, it was ultimately held that the ban on candidature or electoral disqualification, must have a substantial link with the end, may be the possible misuse of position as Insurance Medical Practitioner in doing his duties as Municipal President. On the other question with regard to the acceptance of the Respondents resignation from the post of Chairman of the Institute held by the Respondent, Mr. Salve submitted that the alleged discrepancy in the signatures of the Respondent in his letter of resignation addressed to the President of the Institute with his other signatures, was numberground to suspect that the said document was forged, particularly when it was accepted by the Respondent that the same was his signature and that he used both signatures when signing letters and documents. In this regard, Mr. Salve referred to the Constitution Bench decision of this Court in Union of India Ors. Vs. Gopal Chandra Mishra Ors. 1978 2 SCC 301, wherein the question as to when a resignation takes place or is to take effect, has been companysidered in some detail. While companysidering the various aspects of resignation, either with immediate effect or from a future date, one of the propositions which emerged from the ultimate companyclusions arrived at by this Court was that in view of the provisions of Article 217 1 a and similar provisions in regard to companystitutional functionaries like the President, Vice-President, Speaker, etc. the resignation once submitted and companymunicated to the appropriate authority becomes companyplete and irrevocable and acts ex proprio vigore. The only difference is when resignation is submitted with the intention of resigning from a future date, in such case it was held that before the appointed date such resignation companyld be rescinded. The next case referred to by Mr. Salve in this regard is the decision rendered by this Court in Moti Ram Vs. Param Dev 1993 2 SCC 725, where a similar question arose with regard to resignation from the office of the Chairman of the Himachal Pradesh Khadi and Village Industries Board, with a request to accept the resignation with effect from the date of the letter itself. Considering the said question, this Court held that a person holding the office of Chairman of the said Board should resign from the said office and the same would take effect from the date of companymunication of the resignation to the Head of the Department in the Government of Himachal Pradesh. On a different numbere, Mr. Salve pointed out from the Election Petition itself that the allegations made in paragraph 2 XVI were verified by the Petitioner, both in the verification and the affidavit affirmed on 20.8.2012, as being true and companyrect on the basis of information received and believed to be companyrect. Mr. Salve submitted that under Rule 6 of Order XXXIX of the Supreme Court Rules, allegations of fact companytained in an Election Petition challenging a Presidential election were required to be verified by an affidavit to be made personally by the Petitioner or by one of the Petitioners, in case there were more than one, subject to the companydition that if the Petitioner was unable to make such an affidavit for the reasons indicated in the proviso to Rule 6, a person duly authorized by the Petitioner would be entitled, with the sanction of the Judge in Chambers, to make such an affidavit. Mr. Salve submitted that in the instant case there was numbersuch occasion for the verification to be done by the Petitioner. In regard to the post of Leader of the House, Mr. Salve referred to the Practice and Procedure of Parliament, with particular reference to the Lok Sabha, wherein with regard to the resignation from the membership of other bodies, in the case of the Leader of the House, the procedure followed was that when a Member of the Lok Sabha representing Parliament or Government Committees, Boards, Bodies, sought to resign from the membership of that body by addressing the Speaker, he is required to address his resignation to the Chairman of that Committee, Board or Body and he ceases to be member of the Committee when he vacates that office. Mr. Salve submitted that by tendering his resignation to the Congress President and Chairperson of the Congress Party in Parliament on 20th June, 2012, with immediate effect, such resignation came into force forthwith and numberfurther formal acceptance thereof was necessary. Mr. Salve submitted that numberwithstanding the submissions made in regard to the expression holder of an office of profit, the said argument was also number available to the Petitioner, since by virtue of amendment to Section 3 of the Parliament Prevention of Disqualification Act, 1959, in 2006, the office of Chairman of the Institute was excluded from the disqualification provisions of Article 58 2 of the Constitution of India. Mr. Salve submitted that the aforesaid Act had been enacted to declare that certain offices of profit under the Government, including the post of Chairman in any statutory or number-statutory body, would number disqualify the holders thereof from being chosen as, or for being Members of Parliament as companytemplated under Article 102 1 a of the Constitution. By virtue of the said amendment, a new Table was inserted after the Schedule to the Principal Act which would be deemed to have been inserted with effect from 4th April, 1959. The Indian Statistical Institute, Calcutta, has been placed at Serial No.4 of the Table. Accordingly, the submissions advanced by Mr. Jethmalani with regard to the Respondent holding an office of profit as Chairman of the Institute on the date of filing of numberination for election to the Office of President, were incorrect and the same were liable to be discarded. Mr. Salve submitted that having regard to the submissions made on behalf of the parties, the Election Petition filed by Shri Purno Agitok Sangma did number deserve a regular hearing, as companytemplated in Rule 20 of Order XXXIX of the Supreme Court Rules, 1966, and was liable to be dismissed. The learned Attorney General, Mr. Goolam E. Vahanvati, firstly urged that the expression office of profit ought number to be interpreted in a pedantic manner and has to be companysidered in the light of the duties and functions and the benefits to be derived by the holder of the office. Mr. Vahanvati pointed out that the post of Chairman of the Institute was a purely honorary post, meant to honour the holder thereof. It did number require the active participation of the Chairman in the administration of the Institute, which was looked after by the President and his Council companystituted under the Rules and Regulations of the Institute. Mr. Vahanvati also submitted that the post was purely honorary in nature and did number benefit the holder thereof in any way, either monetarily or otherwise, number was there any likelihood of any profit being derived therefrom. Accordingly, even if Mr. Jethmalanis submission that on the date of filing of numberinations the Respondent companytinued to hold the said office, it would number disqualify him from companytesting the Presidential election. In this regard, the learned Attorney General referred to the decision of this Court in Consumer Education Research Society vs. Union of India Ors. 2009 9 SCC 648, wherein the provisions of the 1959 Act, as amended by the Amending Act of 2006, regarding the disqualification of persons holding offices of profit from companytinuing as Members of Parliament, were under companysideration. Considering the provisions of Articles 101 3 a and 103 in the Writ Petitions filed before this Court under Article 32 of the Constitution, the companystitutionality of the Parliament Prevention of Disqualification Amendment Act, 2006, came to be questioned on the ground that the said Act retrospectively added to the list of offices of profit which do number disqualify the holders thereof for being elected as Members of Parliament. The Writ Petitioners companytended that the amendment had been brought in to ensure that persons who had ceased to be Members of Parliament on account of incurring disqualifications, would be re-inducted to Parliament without election, which, according to the Writ Petitioners, violated the provisions of Articles 101 to 104 of the Constitution. The said question was answered by this Court by holding that the power of Parliament to enact a law under Article 102 1 a includes the power of Parliament to enact such law retrospectively, as was held in Kanta Kathuria Vs. Manak Chand Surana 1969 3 SCC 268 and later followed in the decision rendered in Indira Nehru Gandhi Vs. Raj Narain 1975 Supp SCC 1. Accordingly, if a person was under a disqualification at the time of his election, the provisions of Articles 101 3 a and 103 of the Constitution would number apply and he would companytinue as a Member of Parliament, unless the High Court in an Election Petition filed on that ground declared that on the date of the election, he was disqualified and companysequently declares his election to be void. In other words, the vacancy under Article 101 3 a would occur only after a decision had been rendered on such disqualification by the Chairman or the Speaker in the House. Reference was also made to the decision of this Court in Karbhari Bhimaji Rohamare Vs. Shanker Rao Genuji Kolhe Ors. 1975 1 SCC 252, wherein this Court held that a Member of the Wage Board for the sugar industry companystituted by the Government of Maharashtra, which was an honorary post and the honorarium paid to the Members was in the nature of a companypensatory allowance, exercised powers which were essentially a part of the judicial power of the State. Such Members did number, therefore, hold an office under the Government. Further reference was made to another decision of this Court in Pradyut Bordoloi Vs. Swapan Roy 2001 2 SCC 19, in which the post of a Clerk Grade I in Coal India Ltd., a Company having 100 shareholding of Government, was held number to be an office of profit, which disqualified its holder under Section 10 of the Representation of the People Act, 1951, or under Article 191 1 a of the Constitution of India. While deciding the case, this Court had occasion to observe that the expression office of profit had number been defined in the Constitution. It was observed that the first question to be asked in this situation was as to whether the Government has power to appoint and remove a person on and from the office and if the answer was in the negative, numberfurther inquiry was called for. However, if the answer was in the positive, further inquiries would have to be companyducted as to the companytrol exercised by the Government over the holder of the post. Since in the said case, the Government of India did number exercise any companytrol on appointment, removal, service companyditions and functioning of the Respondent, it was held that the said Respondent did number hold an office of profit under the Government of India, and his being a Clerk in the Coal India Ltd. did number bring any influence or pressure on him in his independent functioning as a Member of the Legislative Assembly. The learned Attorney General lastly cited the decision of this Court in Ashok Kumar Bhattacharyya Vs. Ajoy Biswas Ors. 1985 1 SCC 151, where also what amounts to an office of profit under the Government came up for companysideration and it was held that the employees in the local authority did number hold offices of profit under the Government and were number, therefore, disqualified either under Articles 102 1 a and 191 1 a of the Constitution of India or the provisions of the Bengal Municipal Act, 1932. Their Lordships held that on an analysis of the provisions of the Act, it was quite clear that though the Government exercised a certain amount of companytrol and supervision, the respondent who was an Accountant Incharge of the Agartala Municipality in the State of Assam, was number an employee of the Government and was at the relevant time holding an office of profit under a local municipality, which did number bring him within the ambit of Article 102 1 a of the Constitution. The learned Attorney General submitted that the Disqualification Act is number a defining Act and was never meant to be and one cannot import the definition in the Schedule where only the Institute is mentioned. Sharing the sentiments expressed by Mr. Salve, the learned Attorney General submitted that the Election Petition was liable to be dismissed. Replying to the submissions made by Mr. Harish Salve and the learned Attorney General, Mr. Ram Jethmalani asserted that the 1959 Act was, in fact, a defining Act and falls under Entry 73 of the First List in the Seventh Schedule to the Constitution, which empowers the Parliament to legislate in regard to elections to Parliament, to the legislatures of the States and to the offices of President and Vice-President and the Election Commission. Mr. Jethmalani also reiterated that the Institute was companytrolled by the Central Government. The Act under which the Institute was formed was an Act by the Central Government and the post of Chairman must, therefore, be held to be an office of profit under the Central Government. Reiterating his earlier stand that the Election Petition deserved to be regularly heard, Mr. Jethmalani referred to the decision of this Court in M.V. Rajashekarans case supra , in which the Chairman of a One-man Commission, appointed by the Government of Karnataka to study the problems of Kannadigas and was accorded the status of a Minister of Cabinet rank and was provided by a budget of Rs.5 lakhs for defraying the expenses of pay and day-to-day expenditure of the Chairman, was held to be holding an office of profit under the Government. This Court observed that the question as to whether a person held an office of profit under the Government or number, would have to be determined in the peculiar facts and circumstances of the case. Mr. Jethmalani lastly referred to the decision in the Consumer Education Research Society case supra , which had been referred to by the learned Attorney General, and drew the attention of the Court to the observations made in the judgment in paragraph 77, where it had been observed that what kind of office would amount to an office of profit under the Government and whether such an office of profit is to be exempted, is a matter to be companysidered by the Parliament. While making legislation exempting any office, the question whether such office is incompatible with his position as an M.P. and whether his independence would be companypromised and whether his loyalty to the Constitution will be affected, has to be kept in mind to safeguard the independence of the Members of the legislature and to ensure that they were free from any kind of undue influence from the executive. Mr. Jethmalani companytended that since the Respondent had held office under the Central Government, it will have to be companysidered as to whether his functioning as the President of India would, in any way, be companypromised or influenced thereby. While replying, Mr. Jethmalani introduced a new dimension to his submissions by urging that the Rules and Bye-laws of the Institute did number permit a Chairman, once appointed, to resign from his post. Accordingly, even if the Respondent had tendered his resignation to the President, Dr. Menon, the same was of numbereffect and he companytinued to remain as the Chairman of the Institute. He was, therefore, disqualified from companytesting the Presidential election and his election was liable to be declared void and in his place the Petitioner was liable to be declared as the duly-elected President of the companyntry. The Constitution provides for the manner in which the election of a President or a Vice-President may be questioned. Article 71 provides for matters relating to or companynected with the election of a President or a Vice- President. Clause 1 of Article 71 provides that all doubts and disputes arising out of or in companynection with the election of a President or Vice- President shall be inquired into and decided by the Supreme Court whose decision shall be final. Sub-clause 3 provides that subject to the provisions of the Constitution, Parliament may, by law, regulate any matter, relating to or companynected with the election of a President or a Vice- President. In addition, the Presidential and Vice-Presidential Elections Act was enacted in 1952 with the object of regulating certain matters relating to or companynected with elections to the Office of President and Vice- President of India. As indicated by Mr. Salve, Sections 14 and 14A of the 1952 Act, specially vest the jurisdiction to try Election Petitions thereunder with the Supreme Court in the manner indicated therein. In fact, Part III of the said Act deals with disputes regarding elections to the posts of President and Vice-President of India, which companytains Sections 14 and 14A, as also Sections 17 and 18 which empower the Supreme Court to either dismiss the Election Petition or to declare the election of the returned candidate to be void or declare the election of the returned candidate to be void and the Petitioner or any other candidate to have been duly elected. In view of Sub-section 3 of Section 14 of the Act, the Supreme Court has framed Rules under Article 145 of the Constitution which are companytained in Order XXXIX of the Supreme Court Rules, 1966. As has been discussed earlier, Rule 13 of Order XXXIX provides that upon presentation of a Petition relating to a challenge to election to the post of President of India, the same is required to be posted before a Bench of the Court companysisting of five Judges for preliminary hearing and to companysider whether the Petition deserved a regular hearing, as companytemplated in Rule 20 of Order XXXIX, and, in that companytext, such Bench may either dismiss the Petition or pass any appropriate order as it thought fit. It is under the aforesaid Scheme that the present Election Petition filed by Shri Purno Agitok Sangma challenging the election of Shri Pranab Mukherjee as the President of India has been taken up for preliminary hearing on the question as to whether it deserved a regular hearing or number. The challenge is based mainly on the allegation that on the date of filing of numberinations, the Respondent, Shri Pranab Mukherjee, held offices of profit, namely, Chairman of the Indian Statistical Institute, Calcutta and Leader of the House in the Lok Sabha. In regard to the aforesaid challenges, Mr. Ram Jethmalani, appearing for the Petitioner, had urged that in order to arrive at a companyclusive decision on the said two points, it was necessary that a regular hearing be companyducted in respect of the Election Petition to ascertain the truth of the allegations made by the Petitioner. It was also submitted that the same required a full scale hearing in the manner as companytemplated under Section 141 of the Code of Civil Procedure, as would be evident from Order XXXIX read with the provisions relating to the Original Jurisdiction of the Supreme Court, companytained in Part III of the Supreme Court Rules, 1966. On the other hand, it has been urged by Mr. Harish Salve, appearing for the Respondent, that on the date of filing of numberinations, Shri Pranab Mukherjee was neither holding the Office of Chairman of the aforesaid Institute number was he the Leader of the House in the Lok Sabha, inasmuch as, in respect of both the posts, he had tendered his resignation on 20th June, 2012. There is some doubt as to whether the Office of the Chairman of the Indian Statistical Institute is an office of profit or number, even though the same has been excluded from the ambit of Article 102 of the Constitution by the provisions of the Parliament Prevention of Disqualification Act, 1959, as amended in 2006. Having been included in the Table of posts saved from disqualification from membership of Parliament, it must be accepted to be an office of profit. However, as argued by Mr. Salve, categorising the office as an office of profit did number really make it one, since it did number provide any profit and was purely honorary in nature. There was neither any salary number honorarium or any other benefit attached to the holder of the said post. It was number such a post which, in fact, was capable of yielding any profit, which companyld make it, in fact, an office of profit. The said proposition was companysidered in Shibu Sorens case supra where it was held that mere use of the word honorarium would number take the payment out of the companycept of profit, if there was some pecuniary gain for the recipient in addition to daily allowances in the nature of companypensatory allowances, rent-free accommodation and chauffeur driven car at State expense. Similar was the view expressed in Jaya Bachchans case supra where also this Court observed that what was relevant was whether the office was capable of yielding a profit or pecuniary gain, other then reimbursement of out-of-pocket actual expenses and number whether the person actually received any monetary gain or did number withdraw the emoluments to which he was entitled. In other words, whether a person holding a post accepted the benefits thereunder was number material, what was material is whether the said office was capable of yielding a profit or pecuniary gain. In the instant case, the office of Chairman of the Institute did number provide for any of the amenities indicated hereinabove and, in fact, the said office was also number capable of yielding profit or pecuniary gain. In regard to the office of the Leader of the House, it is quite clear that the Respondent had tendered his resignation from membership of the House before he filed his numberination papers for the Presidential election. The companytroversy that the Respondent had resigned from the membership of the Indian National Congress and its Central Working Committee allegedly on 25th June, 2012, was set at rest by the affidavit filed by Shri Pradeep Gupta, who is the Private Secretary to the President of India. In the said affidavit, Shri Gupta indicated that through inadvertence he had supplied the date of the Congress Working Committee meeting held on 25th June, 2012, to bid farewell to Shri Mukherjee on his numberination for the Presidential Election being accepted. In any event, the disqualification companytemplated on account of holding the post of Leader of the House was with regard to the provisions of Article 102 1 a of the Constitution, besides being the position of the leader of the party in the House which did number entail the holding of an office of profit under the Government. In any event, since the Respondent tendered his resignation from the said post prior to filing of his numberination papers, which was duly acted upon by the Speaker of the House, the challenge thrown by the Petitioner to the Respondents election as President of India on the said ground loses its relevance. In any event, the provisions of the Parliament Prevention of Disqualification Act, 1959, as amended in 2006, excluded the post of Chairman of the Institute as a disqualification from being a Member of Parliament. The Constitutional Scheme, as mentioned in the Explanation to Clause 2 of Article 58 of the Constitution, makes it quite clear that for the purposes of said Article, a person would number be deemed to hold any office of profit, inter alia, by reason only that he is a Minister either for the Union or for any State. Article 102 of the Constitution companytains similar provisions wherein in the Explanation to clause 1 it has been similarly indicated that for the purposes of the said clause, a person would number be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister, either for the Union, or for such State. The argument that the aforesaid provisions of Article 102, as well as Article 58 of the Constitution, companyld number save a person elected to the office of President from disqualification, if he held an office of profit, loses much of its steam in view of the fact that as would appear from the materials on record, the Respondent was number holding any office of profit either under the Government or otherwise at the time of filing his numberination papers for the Presidential election. The various decisions cited on behalf of the parties in support of their respective submissions, clearly indicate that in order to be an office of profit, the office must carry various pecuniary benefits or must be capable of yielding pecuniary benefits such as providing for official accommodation or even a chauffeur driven car, which is number so in respect of the post of Chairman of the Indian Statistical Institute, Calcutta, which was, in fact, the focus and raison detere of Mr. Jethmalanis submissions. We are also number inclined to accept Mr. Jethmalanis submissions that once a person is appointed as Chairman of the Indian Statistical Institute, Calcutta, the Rules and Bye-laws of the Society did number permit him to resign from the post and that he had to companytinue in the post against his wishes. There is numbercontractual obligation that once appointed, the Chairman would have to companytinue in such post for the full term of office. There is numbersuch companypulsion under the Rules and Bye-laws of the Society either. In any event, since the holder of the post of Chairman of the Institute has been excluded from disqualification for companytesting the Presidential election, by the 2006 amendment to Section 3 of the Parliament Prevention of Disqualification Act, 1959, the submissions of Mr. Jethmalani in this regard is of little or numbersubstance. We are number companyvinced that in the facts and circumstances of the case, the Election Petition deserves a full and regular hearing as companytemplated under Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. Consequently, Mr. Jethmalanis submissions regarding the applicability of Section 141 of the Code of Civil Procedure for trial of the Election Petition is of numberavail. We are also number companyvinced that Section 141 of the Code is required to be incorporated into a proceeding taken under Order XXXIX of the Supreme Court Rules read with Part II of the Presidential and Vice-Presidential Elections Act, 1952, which includes Sections 14 to 20 of the aforesaid Act and Article 71 of the Constitution of India. It may number be inappropriate at this stage to mention that this Court has repeatedly cautioned that the election of a candidate who has won in an election should number be lightly interfered with unless circumstances so warrant. We are number inclined, therefore, to set down the Election Petition for regular hearing and dismiss the same under Rule 13 of Order XXXIX of the Supreme Court Rules, 1966. In the facts and circumstances of the case, the parties shall bear their own companyts in these proceedings. CJI. ALTAMAS KABIR J. SATHASIVAM J. SURINDER SINGH NIJJAR New Delhi Dated 05.12.2012 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ELECTION PETITION NO.1 OF 2012 PURNO AGITOK SANGMA PETITIONER VERSUS PRANAB MUKHERJEE RESPONDENT J U D G M E N T RANJAN GOGOI, J. I have had the privilege of going through the opinion rendered by the learned Chief Justice of India. With utmost respect I have number been able to persuade myself to share the views expressed in the said opinion. The reasons for my companyclusions are as indicated below - The short question that has arisen for determination in the Election Petition, at this stage, is whether the same deserves a regular hearing under Rule 20 of Order XXXIX of the Supreme Court Rules, 1966. The Election Petition in question has been filed challenging the election of the respondent to the office of the President of India hereinafter referred to as the President . The election in which the petitioner and the respondent were the companytesting candidates was held to the following Schedule Issue of Notification calling the 16 June 2012 election Last date for making Nominations 30 June, 2012 Date for scrutiny 2 July, 2012 Last date for withdrawal 4 July, 2012 Date of poll, if necessary 19 July, 2012 Date of companynting, if necessary 22 July, 2012 Both the Election Petitioner as well as the respondent filed their numberination papers before the Returning Officer on 28.6.2012. A total of 106 numberination papers filed by 84 persons were taken up for scrutiny on the date fixed i.e. 2.7.2012. The petitioner objected to the validity of the numberination of the respondent on the ground that the respondent on the said date i.e. 2.7.2012 was holding the office of the Chairman of the Council of Indian Statistical Institute, Kolkata hereinafter referred to as the Chairman ISI which is an office of profit. According to the petitioner, at the request of the representative of the respondent, the scrutiny of the numberination of the respondent was deferred to 3.00 p.m. of the next day i.e. 3.7.2012 with liberty to file reply, if any, by 2.00 p.m. Coincidentally, certain objections having been raised to the numberination of the Election Petitioner, companysideration of the same was also deferred to 11.00 a.m. of 3.7.2012. All the remaining numberination papers were rejected on the date fixed for scrutiny i.e. 2.7.2012. On the next date i.e.

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 198 of 1965 and 29-32 of 1966. Appeals from the judgment and order dated August 26, 1965 of the Assam and Nagaland High Court in Civil Rules Nos. 200, 235, 234, 233,and 232 of 1965. K Daphtary, Attorney-General, D. M. Sen, Advocate- General for the State of Nagaland, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant in all the appeals. K. Sen, S. S. Ray, H. K Puri and H. L. Arora, for the respondents in all the appeals . Niren De, Additional Solicitor-General and Naunit Lal, for the intervener. The Judgment of the Court was delivered by Hidayatullah, J. These are appeals by the State of Nagaland against the judgment and order of the High Court of Assam and Nagaland, August 26, 1965, by which the High Court, allowing ,certain writ petitions filed by the respondents, issued a writ of mandamus directing the Additional Deputy Commissioner, Kohima and the State of Nagaland, number to proceed with the trial of the respondents. The High Court has certified the case as fit for appeal to this companyrt. The facts are these The respondents are members of the 7th Battalion of the Central Reserve Police shortly called in this judgment the R.P. who, under the companymand of the 8th.Mountain Division Infantry Brigade, were engaged in operations in the State of Nagaland. On receipt of information that on or about August 3, 1964, seven hostile Nagas, who were captured and kept prisoners with the C.R.P. at Pfutser Camp, were murdered and their dead bodies secretly disposed of, the police, after investigating the report, arrested 44 persons and charged them with offences under ss. 302/109/34 and 201, Indian Penal Code. Some other members of the C.R.P. were charged at the same time under s. 436, Indian Penal Code for setting fire to some houses in certain villages. The trial was about to take place before the Additional Deputy Commissioner, Kohima, when an objection was taken that the trial should be before the Court of Session after companymitment, as the offences were triable by the Court of Session exclusively, under the Code of Criminal Procedure. The Additional Deputy Commissioner overruled the objection pointing out that there were numberCourts of Session in the Naga Hills District and the Criminal Procedure Code was also number in force. He ruled that companymittal proceedings and trial before a Sessions Court were, therefore, number possible and the procedure laid down in the Rules for the Administration of Justice and Police in the Naga Hills District, 1937, would be followed. For brevity we shall refer to these Rules as the Rules of 1937. The respondents filed five petitions under Art. 226 of the Constitution for writs or orders to quash the proceedings under the Rules of 1937 and other reliefs. By the order impugned here a Divisional Bench companysisting of C. Sanjeeva Rao Nayudu and S. K. Dutta JJ., quashed the proceedings and issued a writ of mandamus directing the Additional Deputy Commissioner and the State of Nagaland number to proceed under the Rules of 1937 with the trial of the accused before him. The learned Judges gave separate, but companycurring judgments. Mr. Justice Dutta in a brief judgment reached the companyclusion that the Rules of 1937 made by the Governor of Assam and the earlier rules made by the Lt. Governor on November 29, 1906 were number validly made. In his opinion there already existed certain other Rules made by the Governor-General in Council in 1874 and the local Government was number companypetent to make rules while those Rules existed. In regard to the Rules of 1874 the learned Judge held that they had become infructuous for want of suitable adaptations after the political changes since 1874. He did number companysider any other ground of alleged invalidity of these Rules and expressly refrained from giving any opinion. Mr. Justice C. Sanjeeva Rao Nayudu dealt with the problem exhaustively and viewed it from many angles. He gave several reasons for holding that the trial companyld number take place under the Rules of 1937. We have number found it easy to summarize his reasons effectively but, briefly stated, they were that the Rules of 1937 were void ab initio because the Scheduled Districts Act, 1874 under which the Governor purported to make them did number give him any authority to make them that if the Act gave such authority, it was itself ultra vires the statutes of British Parliament and involved excessive delegation that on the repeal of Scheduled Districts Act in 1937, all ruled made under it lapsed that the Rules of 1937 were vague, uncertain and elusive and were number law as companytemplated by Art. 21 that they were discriminatory for various reasons that they companyld number apply to Indian citizens in Nagaland and that, in any event, the Additional District Magistrate was number acting in accordance with those Rules such as they were. We need number at this stage attempt to enlarge upon the various themes because the arguments on behalf of the respondents have presented a selection of the reasons which were given by Mr. Justice Nayudu and they will appear in appropriate places in our Judgment. We are companycerned with a new State formed as late as 1962 but the territory of this State has had a very long and chequered history. The area, where the trial is taking place is one of the backward tracts and it has, for a century and more, been specially administered. In that area the ordinary laws particularly the two main Codes in force in the rest of India, have number been applied. The successive Criminal Procedure Codes, which ordinarily would have governed the trial of offences, were always withdrawn from this area and special rules for administration of criminal justice were promulgated instead. Whether such rules particularly the Rules of 1937 were validly enacted, whether they companytinue to be in force and whether they are rendered void by reason of Arts. 14 and 21 of the Constitution are the main problems requiring companysideration. Before we companysider these questions the history of law-making in these areas may first be told generally and then in relation to the Rules for the Administration of Justice promulgated in 1937 and at other times. Even prior to the taking over of the Government of the territories formerly administered by the East India Company the making of laws was entrusted to the Governor- General in Council under 3 4 William IV, Ch. 85 and 16 17 Vict. Ch. 95. They allowed laws to be made directly for the areas which were under the Government of East India Company. After the Indian Councils Act of 1861 24 25 Vict. Ch. 67 was passed the legality of the laws which had been made by the Governor-General either in Council or on his own was in question. Section 22 of the Indian Councils Act made new provision by which the Governor-General in Council was authorised to make laws and regulations for India and to repeal, amend or alter any law or regulation whatever in force in India. The Act also made provision validating all earlier laws by enacting that numberrule, law or regulation made before the passing of that Act by the Governor-General or certain named executive authorities would be deemed invalid by reason of number having been made in companyformity with the provisions of the Charter Acts. The power to make laws was taken away from the executive authorities. The power, which was taken away from the Governor and other authorities to make or propose laws was again companyferred on the Governor- General and other authorities by the Government of India Act, 1870 33 34 Vict. Ch. 3 and the Governor-General was allowed to legislate separately for the backward tracts. For this purpose the Governor in Council, the Lt. Governor or the Chief Commissioner, as the case, may be, companyld submit to the Governor-General draft regulations for his companysideration and after their approval by the Governor- General in his Council such regulations became law for these backward areas. This state of affairs existed right down to the Government of India Act, 1915. As difficulties arose in determining what laws were in force and in which areas of the backward tracts, the Scheduled Districts Act, 1874 was passed. This Act will be companysidered closely later and for the present we companytent ourselves with a few points of importance to the present narrative. The preamble of the Act clearly set out that the object, inter alia, was to ascertain the enactments in force in any territory and the boundaries of such territory. The Act, therefore, specified Scheduled tracts and the local Governments were given the powers to extend by public numberification, any enactment in force in British India. When the Government of India Act, 1915 5 6 Geo V, Ch. 61 was enacted, while repealing by the Fourth Schedule the Government of India Act, 1870, section 71 was included in the 1915 Act which, in effect, provided the same procedure for making and applying laws as had been provided by the Act of 1870. The local Governments companyld propose draft regulations for peace and good Government of any part within their jurisdiction and the Governor-General after taking the draft regulations and the reasons into companysideration companyld approve in his Council and assent to the Regulations. After his assent and on their publication in the official Gazette of India and in the local official Gazette, if any, they had the same force of law and were subject to the same disallowance as if they were the Act of the Governor-General in his Legislative Council. When the Government of India Act, 1919 9 10 Geo. V, Ch. 101 was passed s. 52-A. was inserted which read as follows - 52-A. Constitution of new provinces, etc., and provision as to backward tracts. 1 The Governor-General in Council may declare any territory in British India to be a backward tract, and may, by numberification, with such sanction as aforesaid,. direct that this Act shall apply to that territory subject to such exceptions and modifications as may be prescribed in the numberification. Where the Governor-General in Council has, by numberification, directed as aforesaid, he may, by the same or subsequent numberification, direct that any Act of the Indian legislature shall number apply to the territory in question or any part thereof, orshall apply to the territory or any part thereof subject to such exceptions or modifications as the Governor-General thinks fit, or may authorise the Governor in Council to give similar directions as respects any Act of the local legislatures. Thus at the inauguration of the Government of India Act, 1935 the position was that the Governor-General in. Council or the Governor etc. with the approval of the Governor- General in Council legislated for these backward tracts and the Governor-General companyld direct that any Act of the Indian legislature should number apply at all or should apply with such exceptions and modifications as the Governor-General might think fit. When the Government of India Act, 1935 replaced the Government of India Act, an Order in Council was made in 1936 specifying the backward tracts and the 1935 Act included ss. 91 and 92 for the ascertainment of the backward tracts and for the making of laws in those areas. Section 92, which dealt With the administration of the excluded areas and partially excluded areas, provided Administration of excluded areas and partially excluded areas The executive authority of a Province extends to excluded and partially excluded areas therein, but, numberwithstanding anything in Act, numberAct of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public numberification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. The Governor may makeregulations for the peace and good Government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or any existing Indian Law, which is for the time being applicable to the area in question. Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have numbereffect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him. The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his X X discretion. After this the Scheduled Districts Act became obsolete and war, repealed by the Adaptation of Laws Order, 1937. Next came the inauguration of the Constitution. Article 244 made a special provision for the scheduled and tribal areas and the second clause of that article provided that the provisions of the Sixth Schedule were to apply to the administration of the tribal areas in the State of Assam. Originally in the Sixth Schedule to the Constitution the Naga Hills District was included as an autonomous district and was shown in Part A of Paragraph 20 and the Naga Tribal Area was shown in Part B. It is number necessary to refer in detail to the Sixth Schedule which provided for separate modes of administration of the Part A and Part B territories. The name Naga Tribal Area was changed to Tuensang Frontier Division by the North East Frontier Areas Administration Regulation, 1954 No. 1 of 1954 which came into force on January 19, 1954. By the same Regulation the North East Frontier Tract was stated to include Balipara Frontier Tract, the Tirap Frontier Tract, the Abor Hills District, the Misimi Hills District and with the Naga Tribal Area was named companylectively as the North East Frontier Agency. Then by the Naga Hills-Tuensang Area Administration Act, 1957 42 of 1957 , the Naga Hills District was omitted from Part A and the whole of the Naga Hills-Tuensang area was shown in Part B with effect from December 1, 1957. The Tuensang area was the former Naga Tribal Area and the other two areas were the autonomous districts of Kohima and Mokokchung. The State of Nagaland was formed by the State of Nagaland Act, 1962 27 of 1962 . That Act repealed and replaced the Nagaland Transitional Provisions Regulation, 1961 Regulation 2 of 1961 . The territory of the new State companyprises the Naga Hills-Tuensang Area and companysists of three districts which are the Kohima District, the Mokokchung District and the Tuensang District. The State of Nagaland Act also deleted all references to the Naga Hills-Tuensang Area from the Sixth Schedule. The administration of the State ,of Nagaland was to be in accordance with the provisions of State ,of Nagaland Act. Among other things it provided for a companymon High Court for the State of Assam and the State of Nagaland. By section 26 it laid down-- Continuance of existing laws and their adaptation.- All laws in force, immediately before the appointed day, in the Naga Hills-Tuensang Area shall companytinue to be in force in the State of Nagaland until altered, repealed or amended by a companypetent Legislature or other companypetent authority. For the purpose of facilitating the application in relation to the State of Nagaland of any law made before the appointed day, the appropriate Government may, within two years from that day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a companypetent Legislature or other companypetent authority. Explanation.-In this section the expression appropriate Government means, as respects any law relating to a matter enunciated in the Union List in the Seventh Schedule to the Constitution. The Central Government and as respects any other law, the Government of Nagaland. Section 27 companyferred power on companyrts, tribunals and authorities to companystrue, in the absence of adaptations, the laws in such manner, without affecting the substance, as may be necessary. By s. 28 all companyrts, tribunals and authorities discharging lawful functions were companytinued as before unless their companytinuance was inconsistent with the State of Nagaland Act. So much will suffice to describe the ground-work of law-making under the authority of British Parliament, the Governor-General in Council and the Parliament and Legislatures under the present Constitution. We shall number see the real crux of the problem because the Government and administration of these areas was often number carried on directly under laws made by the Governor-General either by himself or in his Council but through rules which were framed from time to time, by other agencies. We will number describe how these rules, some of which are in companytroversy in the present appeal, were made. On September 24, 1869 the Governor-General enacted the Garo Hills Act, 1869 Act 22 of 1869 . By this Act the Garo Hills were removed from the jurisdiction of the Civil, Criminal and Revenue companyrts and offices established under the General, Regulations and Acts and the Act provided for the administration of justice and companylection of revenue. The Act repealed an earlier Act of 1835 No. 6 of 1835 and the Bengal Regulation 10 of 1822, but in this case we are number required to go behind 1869. We are referring to this Act because it was extended also to the Naga Hills. Section 4 of the Act on extension provided that the territory known as the Naga Hills was removed from the jurisdiction of companyrts of Civil and Criminal Judicature as well as from the law prescribed for the said companyrts and numberAct passed by the Council of the Governor-General for making laws and regulations was deemed to extend to any part of the said territory unless the same was specially named in it. By s. 5 the administration of Civil and Criminal justice was vested in such officers as the Lt. Governor might, for the purpose of tribunals of first instance or of reference and appeal, from time to time, appoint. The officers so appointed were, in the matter of administration, subject to the direction and companytrol of the Lt. Governor and were to be guided by such instructions as the Lt. Governor might, from time to time, issue. The Lt. Governor companyld extend by numberification any law or any portion of a law in force in the other territories subject to his Government or to be enacted by the Council of the Governor. General or of the Lt. Governor for making laws and regulations and while making such extensions companyld direct by whom the powers and duties incident to the provisions so extended should be exercised or performed and might make any order which was deemed requisite for carrying such provisions into operation. The Act also gave power by s. 9 to the Lt. Governor to extend mutatis mutandis all or any of the provisions companytained in the other sections of the Act to the Jaintia Hills, the Naga Hills and to such portions of the Khasi Hills as for the time being formed parts of British India. The Act was also extended to Khasi and Jaintia Hills and the authority of the Governor-General to enact the Act and of the Lt. Governor to tend it was challenged. The decision of the Judicial Committee is reported in Queen v. Burah L. R. 5 I.A. 178 which held that both the powers existed. On October 14, 1871 acting under s. 9 of the Act of 1869 the Lt. Governor extended the whole of the Act to the Naga Hills District and vested the administration of Civil and Criminal jurisdiction in the Commissioner of Assam subject to his own direction and companytrol. The Commissioner was to exercise the powers of the High Court in Civil and Criminal cases triable in the Courts of the said districts but numbersentence of death was to be carried out without the sanction of the Lt. Governor and it was companypetent to the Lt. Governor to call for the record of any criminal or civil case and to pass such orders thereon as he saw fit. The numberification also ordered that cases number then triable in the ordinary British Courts would number be triable therein and even in those cases which were triable in those companyrts, the officers were to guide themselves by the spirit of the laws prevailing in British India and in force in the districts. In companytinuation of this numberification, the Lt. Governor made under s. 5 of the Act of 1869, in application to the Naga Hills which he renamed the Naga Hills Agency Rules for the Administration of Justice and Police in the Naga Hills Agency. These rules were first published on August 7, 1872 and may be called, for brevity, the Rules of 1872. The Rules of 1872, 39 in number, dealt with various topics but we shall set down the purport of such rules only as companycern US. Part I was general and companysisted of two rules. By Rule 1, the administration of the Naga Hills Agency was vested in the Commissioner of Assam, the Political Agent and his assistants, the Monzadars, Gaonburahs, Peumahs Naga Chiefs and Houshas Kookie Chiefs or headmen of Khels, or such other classes of officers as the Lt. Governor deemed fit. Part II provided for police a-.id companysisted of Rules 3 to 15. We are number companycerned with it. Criminal justice was provided for in Part III Rules 16 to 24 and Civil Justice in Part IV Rules 25 to 30 . We are only companycerned with the former. Criminal justice was to be ordinarily administered by the Political Agent, his assistants and by the Mouzadars etc. The Political Agent companyld pass a sentence of death or imprisonment for a term unlimited or of fine up to any amount but number so as to exceed the value of the offenders property. No sentence of death was to be carried into effect without the companycurrence of the Commissioner and the sanction of the Lt. Governor. Similarly, numbersentence above 7 years imprisonment companyld be carried into effect without the approval of the Commissioner. The Commissioner companyld enhance any sentence passed by his subordinates. The Assistant to the Political Agent was to exercise the powers of a Magistrate, First Class as laid down in the Criminal Procedure Code of 1872. The Mouzadars etc. were to try petty offences and companyld impose a fine up to Rs. 50. There were elaborate rules for trial by them and appeals lay against their decisions to the Political Agent or his Assistant. Appeals lay to the Political Agent from the decisions of his Assistant. No appeal lay as of right from the sentence of the Political Agent involving less than three years imprisonment but the Commissioner companyld call for the record of the case to satisfy himself. Sentences above that period were appealable to the Commissioner. The Lt. Governor was empowered to review the proceedings of all subordinate officers. Rule 23 bore upon the manner of the trial. It provided that the procedure of the Political Agent and his Assistant was to be in the spirit of the Code of Criminal Procedure as far as it was applicable to the circumstances of the District and companysistent with the Rules. The main exceptions were Verbal numberices fixing a date to appear were sufficient when the police was employed to companyvey them or the person was number resident or in the district or where his place of abode was number known. Political Agent and his Assistant were to keep only the substance of all proceedings in cases requiring sentences below three years. In other cases, full numberes of the proceedings had to be kept in English. Proceedings before Mouzadars etc. were number required to be in writing but if a person companyld be found to be able to write, a brief numbere of the proceeding was to be made. All fines levied by the Mouzadars etc. were to be paid to the Political Agent or his Assistant or some officer specially empowered by the Political Agent. It was discretionary to examine witnesses on oath in any form or to warn them that they were liable to punishment for perjury if they stated what they knew to be false. On February 6, 1874 there was formation of the Chief Commissioner ship in Assam. The Governor-General in Council issued a proclamation under s. 3 of 17 18 Vict., Ch. 77. By the proclamation he took under his immediate authority and management the backward territories then under the Lt. Governor of Bengal including the Naga Hills. By another numberification the Governor-General in Council in exercise of powers under s. 3 of the Act formed those territories into a Chief Commissioner ship called the Chief Commissioner ship of Assam. In April of the same year an Act Act 8 of 1874 was passed to provide for the exercise within the said territories, of the powers which were before exercised under or by virtue of any law or regulation by the Lt. Governor of Bengal and the Board of Revenue. By the first section these powers were transferred and vested in the Governor-General in Council and by s. 2 the Governor-General in Council was empowered to delegate to the Chief Commissioner all or any of the powers or withdraw any power so delegated. On 16th of April, 1874 the Governor-General in Council by numberification delegated to the Chief Commissioner of Assam powers which M12SupCI/66-8 were formerly vested in or were exercisable by the Lt. Governor of Bengal. On June 13, 1874 the Governor-General in Council made alterations in the Rules of 1872 but only to make them accord with the political changes and republished them for general information. The changes were that wherever the Commissioner was mentioned in the Rules, the Chief Commissioner was substituted and where the Lt. Governor was mentioned the Governor-General was to be read. The Rules, however, remained the same. We shall refer to these Rules as the Rules of 1874. Doubts having arisen in some cases as to which Acts or Regulations were in force or the boundaries of the territories in which they were in force and with a view to providing a ready means for ascertaining the enactments in force in the respective areas and the boundaries of the areas and for administering the law therein, an Act was passed by the Governor-General of India in Council. This Act was in titled the Scheduled Districts Act, 1874 14 of 1874 . This Act remained on the statute book till the Government ,of India Act, 1935 came into force when it was repealed by the Adaptation of Laws Order, 1937. The scheme of the relevant provisions of this Act was this. The Act extended to the whole ,of India. It defined Scheduled Districts by reference to its First Schedule and these districts were to include such other territories in which the Secretary of State in Council declared the provisions of 33 Vict. Ch. 3 section 1 to be applicable. The Act repealed other enactments by its Second Schedule. By sections 3 and 4 the local Government was enabled, with the previous sanction of the Governor-General in Council to numberify what enactments were in force and what were number in force in any of the Scheduled Districts and to companyrect any mistake of fact in a numberification already issued under that Act but number so as to change a declaration once made and on the issue of such numberifications the intended effect was to follow. By s. 5 the local Government with the previous sanction of the Governor-General in Council was enabled to extend to the Scheduled Districts any Act in force in British India. Sections 6 and 7, which were the subject of great discussion in this appeal, may be quoted for future reference Appointment of officers and regulation of their procedure. The Local Government may from time to time- a appoint officers to administer civil and criminal justice and to superintend the settlement and companylection of the public revenue, and all matters relating to rent, and otherwise to companyduct the administration, within the Scheduled Districts, b regulate the procedure of the officers so appointed but number so as to restrict the operation of any enactment for the time being in force in any of the said Districts, c direct by what authority any jurisdiction, powers or duties incident to the operation of any enactment for the time being in force in such District shall be exe rcised or performed. Continuance of existing rules and officers. All rules heretofore prescribed by the Governor-General in Council or the Local Government for the guidance of officers appointed within any of the Scheduled Districts for all or any of the purposes mentioned in section six and in force at the time of the passing of this Act, shall companytinue to be in force unless and until the Governor General in Council or the Local Government, as the case may be, otherwise directs. All existing officers so appointed previous to the date on which this Act companyes into force in such District, shall be deemed to have been appointed hereunder. Section 8 enabled settlement of question as to boundaries of Scheduled Districts. Section 9 indicated the place of imprisonment or of transportation. Sections 10 and 11 do number matter to us. The Assam Frontier Tracts Regulation 1880 Regulation II of 1880 was next enacted to provide for the removal of certain Frontier Tracts in Assam from the operation of enactments in force there. Section 2 of the Regulation read Power to direct that enactment shall cease to be in force. When this regulation has been extended in manner hereinbefore prescribed to any tract, the Chief Commissioner may from time to time, with the previous sanction of the Governor General in Council, by numberification in the local Gazette, direct that any enactment in force in such tract shall cease to be in force therein, but number so as to affect the criminal jurisdiction of any companyrt over European British Subjects. Under the provisions of this Regulation the Criminal Procedure Codes of 1882 and 1898 were withdrawn from the Naga Hills. By proclamation No. 2832 dated the 1st September, 1905 the Governor-General, with the sanction of His Majesty, companystituted the Province of Assam to which were added certain districts of East Bengal and appointed a Lt. Governor. The new Province was known as Eastern Bengal and Assam. The Governor-General in Council also passed on the 29th September, 1905 an Act No. 7 of 1905 . it provided by s. 5 as follows- Power to Courts and Local Governments for facilitating application of enactments. For the purpose of facilitating the application to any of the territory mentioned in Schedule A, B or C of any enactment passed before the companymencement of this Act, or of any numberification, order, scheme rule, form or bylaw made under any such enactment,-- a b the Local Government may, by numberification in the local official Gazette, direct by what officer any authority or power shall be exercisable, and any such numberification shall have effect as if enacted in this Act. Naga Hills were in Schedule A. On November 29, 1906, the Lt. Governor prescribed Rules for the Administration of Justice and Police in the Naga Hills District under S. 6 of the Scheduled Districts Act, 1874. These Rules may be companyveniently called the Rules of 1906. These Rules repeated the Rules which had been in force from 1872 with appropriate modifications companysequent upon the political changes. The numberenclature of Political Agent and his Assistant was dropped and in their place the Deputy Commissioner and his Assistants were named in the Rules. The Deputy Commissioners became the equivalent of Political Agents in the exercise of powers. The Assistants to the Deputy Commissioner were invested with powers of First Class Magistrates. All sentences of death or transportation were required to be companyfirmed by the Lt. Governor but did number have to be companysidered by the Commissioner as in the Rules of 1872 and 1874. All sentences of imprisonment of 7 years and upward had to be companyfirmed by the Commissioner. The Lt. Governor and the Commissioner had record of a criminal case and reduce enhance it within the limits prescribed Except for these differences the Rules the same. Assam underwent yet another change at the imperial Coronation Darbar held in Delhi in December, 1911, the King announced a new distribution of territory. Bihar and Orissa were cut off from Bengal and were formed into an independent Lt. Governorship. Eastern Bengal was reunited with West Bengal and Assam once again became a separate Province with a Chief Commissioner. This new scheme took effect from April 1, 1912. In 1914 by two numberifications Nos. 5467P and 5459P dated 13- 10-1914 , which were issued under Regulation 2 of 1818, all enactments in force in the Western, Central, North East and Eastern Tracts were to cease to be in force and under s. 5 of the Scheduled Districts Act, 1874, the Indian Penal Code, the Indian Police Act, the Indian Arms Act, the Assam Land Revenue Regulation, the Assam Forest Regulation and the Whipping Act were extended by the Chief Commissioner with the previous sanction of the Governor-General in Council. The administration of Assam thereafter companytinued under the above mentioned Acts and the procedural part was taken from the Rules of 1906 which laid down that in criminal trials the spirit of the Criminal Procedure Code was to be followed because the Code itself was number in force. In 1921 Assam became a Governors Province. We next companye to March 25, 1937, On that day the Governor of Assam prescribed revised Rules under the powers vested in him by s. 6 of the Scheduled Districts Act. These Rules did number materially differ from the Rules of 1872, 1874 and 1906. The Rules of 1937 began by stating that they cancelled all previous orders on the subject. The changes that were introduced were of the pattern we have known before. The administration of the Naga Hills was vested in the Governor of Assam, the Deputy Commissioner, the Additional Deputy Commissioners and Assistants to the Deputy Commissioner, the Mouzadars, etc. The Deputy Commissioner, the Additional Deputy Commissioner and Assistants to the Deputy Commissioner were to be appointed by the Governor. As a result of these changes, the provisions of Part III dealing with criminal justice were suitably amended. The first change was to assign duties to the Additional Deputy Commissioner. The term Deputy Commissioner was said to include an Additional Deputy Commissioner and the latter had the same powers as the former Rule 15A . The terms District Magistrates, Additional District Magistrates and Magistrates of the District, Sub-Divisional Magistrates or Magistrate of a Sub-Division were to refer to in any law in force in Naga Hills to the Deputy Commissioner, Additional Deputy Commissioner and Sub-Divisional Officers, Mokokchung Rule 15B . In respect of all offences under the Indian Penal Code or under any other law to be investigated, inquired into, tried or otherwise dealt with according to the Rules of 1937 the words and expressions defined in s. 4 of the Criminal Procedure Code, 1898 were to have the same meanings. The Deputy Commissioner companyld impose any sentence but the sentence of death was subject to companyfirmation by the High Court. The Assistants to the Deputy Commissioner were equated to Magistrates of First Class, but the Governor companyld, if he thought fit, invest an Assistant to the Deputy Commissioner either generally or for trial of a particular case or cases with all powers of the Deputy Commissioner, except to pass a sentence of death. Another change was that instead of the Lt. Governor the High Court of Assam and the Deputy Commissioner companyld call for the record of any case and reduce, enhance or cancel any sentence or remand the case for retrial. Sentences of death Passed by the Deputy Commissioner were subject to the companyfirmation by the High Court of Assam Rule 16-A and the Deputy Commissioner while companyvicting the accused and sentencing him to death was to inform the accused about the period in which the appeal should be filed Rule 16-B . The other Rules defined the powers of the High Court in cases submitted for companyfirmation of sentence Rule 16-C, D and E. . Appeals lay from the Deputy Commissioner to the High Court in any case. These Rules, it is companytended on behalf of the State of Nagaland, companytinue till today. They were amended in 1952, 1954, 1956 and 1957. In 1937 by the Adaptation of Laws Order the Scheduled Districts Act was repealed but there was a special saving which read as follows- This Act shall cease to have effect, without prejudice to the companytinuing validity of any numberification, appointment, regulation, direction or determination made thereunder and in force immediately before the companymencement of Part III of the Government of India Act, 1935 Provided that, where immediately before the first day of April, 1937, any enactment is, by virtue of any numberification made under this Act, in force in any area in British India, either with or without restrictions or modifications, the Central Government, in relation to matters enumerated in List I of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six months from the said date, by numberification in the Official Gazette, declare that the enactment in question shall have effect in that area subject to such modifications and adaptations specified in the numberification as the Government in question may deem necessary or expedient to bring it into accord with the Government of India Act, 1935. In 1945 the Assam Frontier Administration of Justice Regulation, 1945 Regulation 1 of 1945 was enacted. It was originally made applicable to Balipara, Lakhimpur, Sadiya and Tirap Frontier Tracts. It was applied to Tuensang in 1955. In the main these Regulations were the same as the Rules of 1937 applicable in the Kohima and Mokokchung Divisions but slight difference existed in the powers of the High Court in the matter of transfers and appeals against acquittals. As these were the subject of an argument we shall refer to these differences later. Before the formation of the State of Nagaland the laws in the Tuensang Frontier Division and those in force in the rest of the North-East Frontier Agency were assimilated by the Tuensang Frontier Division Assimilation of Laws Regulation, 1955 No. 4 of 1955 . These were made by the Governor in exercise of the powers companyferred by clause 2 of Art. 243 of the Constitution read with Sub-paragraph 2 of paragraph 18 of the Sixth Schedule to the Constitution by the President of India. By Paragraph 3 of that Regulation all laws except the Tuensang Frontier Division Undesirable Persons Regulation, 1951, which were extended to or were in force in Tuensang Frontier Division but were number extended to and number in force in the rest of the North East Frontier Agency ceased to be in force in Tuensang Frontier Division. Similarly, all laws which immediately before the appointed day did number extend to or were number in force in the Tuensang Frontier Division but extended to or were in force in the rest of the North East Frontier Agency, were extended to or came into force in the Tuensang Frontier Division. In other words, the laws in the North East Frontier Agency became companypletely uniform except in one respect, namely, the companytinued enforcement of the Undesirable Persons Regulation referred to above in Tuensang Division. As the Criminal Procedure Code was never in force in any part of the North East Frontier Agency it did number companye into force in the Tuensang Area. On the other hand, the Rules of 1937 if they were valid and in force got extended to the Tuensang area also. In 1921, in accordance with the provisions of the Government of India Act, Assam became a Governors Province and later one of the States in the Indian Republic. The Regulations of 1952, 1954, 1956 and 1957 were made by the Governor in exercise of his powers under the Sixth Schedule of the Constitution. We shall number companysider the arguments in these appeals which have companyered a wide field, and they were also apparently addressed in the High Court and found favour there. We may here dispose of one argument which is somewhat independent of the others. It is companytended that the Rules of 1937 did number survive the repeal of the Scheduled Districts Act, 1874 by the Adaptation of Laws Order, 1937, numberwithstanding the saving clause in the Adaptation of Laws Order. This argument is. based on the submission that the savings clause reproduced earlier by us did number mention rules as such. We do number agree. The saving clause preserved all numberifications. The Rules of 1937 were enacted by numberification and if numberifications were saved the Rules in the numberification were also saved. After the passing of the Government of India Act, 1935, the Rules of 1937 would be successively preserved by ss. 292 and 293 of the Government of India Act, 1935, S. 18 of the Indian Independence Act, 1947 and Art. 372 of the Constitution. The real questions are whether they were invalid for any reason to start with or became void after the Constitution. The powers of the Governor-General in Council and number ,of the President derived from the various companystitutional documents are number and indeed cannot be in doubt. Hence the attempt of the respondents is to challenge the powers of the Lt. Governor, Chief Commissioners and the Governor who have in turns made Rules for the administration of these areas. The attack is on the Rules of 1906 and 1937 as being incompetently made under the Scheduled Districts Act and on ss. 6 and 7 of the Scheduled Districts Act, if it be held that the Rules were companypetently made. We shall deal first with these arguments. The companytention that the Rules of 1937 were void ab initio is supported by many arguments. The submission is that ss. 6 and 7 of the Scheduled Districts Act did number companyfer any powers of legislation to regulate judicial procedure. It is pointed out in this companynection that s. 6 a gave powers to appoint officers to administer civil and criminal justice and s. 6 b allowed the procedure of the officers so appointed to be regulated which meant administrative procedure and numbergeneral law-making authority can be implied and s. 6 c enabled the choosing of authority by which any jurisdiction, power or duty incident to the operation of any enactment for the time being in force should be exercised or performed in any scheduled district. Reference is made in this companynection to s. 5 of the Act of 1869 where it was laid down that the officers so appointed would, in the matter of administration and superintendence, be subject to the direction and companytrol of the Governor and would be guided by such instructions as he might, from time to time, issue. It is companytended that by regulating the procedure is meant instructions on the administrative side. In our opinion this is a wrong reading of the section. We must number forget that the Scheduled Districts Act was passed because the backward tracts were never brought within the operation of all the general Acts and Regulations particularly the Criminal Procedure Code and were removed from the operation and jurisdiction of the ordinary companyrts of Judicature. In these areas the Indian Penal Code was always applicable but number the Code of Criminal Procedure. The local Governments were empowered by the Scheduled Districts Act to appoint officers to administer civil and criminal justice and to regulate the procedure of the officers so appointed. Officers appointed to administer civil and ,criminal justice must follow some procedure in performing this task. Regulating procedure, therefore, meant more than framing administrative rules. It meant the companytrol of the procedure for the effective administration of justice. It is significant that the Governor-General in Council, who enacted the Scheduled Districts Act, framed the Rules of 1874 companytaining companyprehensive rules of procedure for dealing with criminal cases. This was a clear exposition of ss. 6 and 7 of the Scheduled Districts Act by the Governor-General in Council himself. The Act was understood as companyferring full powers to regulate number the administrative procedure only but also the procedure for administration of criminal justice. As the Rules of 1872, 1874, 1906 and 1937 were almost the same except for a few changes rendered necessary by the altered political companyditions it is clear that a succession of officers saw the necessity of Rules companytrolling number only the administrative side but the judicial side of administration of justice. In our judgment the companystruction of ss. 6 and 7 attempted by the respondents cannot be accepted. It is next companytended that the Act itself was bad because the Legislature did number legislate on the subject of judicial procedure but left essential legislation to a delegate, without laying down any or at least enough guidance in the Scheduled Districts Act for those who were to make Rules under it. In this companynection learned companynsel has drawn our attention to several rulings in which the question of excessive delegation has been companysidered by this Court and in particular we have been referred to Re the Delhi Laws Act, 1912, 1 Hamdard Dwakhana Wakf Lal Kuan v. Union of India, 2 Vasantlal Maganbhai Sanjanwala v. State of Bombay 3 and D. S. Grewal v. State of Punjab. 4 It is submitted that ss. 6 and 7 of the Scheduled Districts Act laid down numberpolicy, and did number afford a guide in the making of Rules except to say that officers should be appointed to administer civil and criminal justice and that the local Government might regulate the procedure of such officers, thereby leaving the essential law-making to the delegate. In this Court we have on several occasions pointed out that guidance may be sufficient if the nature of thing to be done and the purpose for which it is to be done is clearly indicated. Instances of such legislation were cited before us and the case of Harishankar Bagla v. Madhya Pradesh 5 was one of them. The policy and purpose may be pointed out in the section companyferring the powers and may even be indicated in the preamble or elsewhere in the Act. The preamble of the Scheduled Districts Act shows that these backward tracts were never brought within, but from time to time were removed from, the operation of general Acts and Regulations and the jurisdiction of the ordinary companyrts of judicature was also excluded. It was therefore necessary to ascertain the enactments 1 1951 S.C.R. 747. 2 19601 2 S.C.R. 671. 3 1961 1 S.C.R. 341. 4 1959 Supp. 1 S.C.R. 792. 5 1955 1 S.C.R. 288. 8 50 in force and to set up a machinery for making simple rules. The Act companyferred on the local Governments power to appoint officers for administration of civil and criminal justice within the Scheduled Districts and empowered the local Government to regulate the procedure of the officers so appointed and to companyfer on them authority and jurisdiction, powers and duties incident to the administration of civil and criminal justice. These provisions afforded sufficient guide to the local Government that the administration of civil and criminal justice was to be done under their companytrol by the officers appointed by them and the procedure which they were to follow must be laid down. This was number an instance, therefore, of excessive delegation at all. The Legislature clearly indicated the policy and the manner of effectuating that policy. There was sufficient guidance in the three sub-sections of s. 6 read as a whole with the preamble and the Chief Commissioners Rules made in 1872 and republished in 1874 by the Governor-General in Council were also available as a further guide as the last were companytinued in force by s. 7. Indeed, the subsequent Rules of 1906 and 1937 repeated the Rules of 1872 1874 with amendments necessary owing to political changes and only slightly liberalised them in some ways. We do number companysider that there was excessive delegation of legislative authority by the Legislature. It is next companytended that s. 7 of the Scheduled Districts Act did number companyfer any power upon the local Government to alter in any way the Rules made by the Governor-General in Council. That section says that Rules which had hitherto been prescribed by the Governor-General or the local Government for the guidance of the officers appointed within any of the scheduled districts were to companytinue to be in force unless and until the Governor-General or the local Government, as the case may be, otherwise directed. It is admitted that the Governor-General in Council, possessing an overriding power, might even have amended the Rules made by the local Government. But it is submitted that the Governumber-General in Council companyld amend his own Rules and the local Government companyld amend its own Rules but the Local Government, being a delegate, companyld number amend or cancel the Rules of the Governor-General in Council. It is urged that the Rules of 1906 made by the Lt. Governor and the Rules of 1937 made by the Governor were ineffective. With regard to the Rules of 1906 it is sufficient to say that the Bengal Assam Laws Act 1905 authorised local Government by numberification to say by what officer any authority or power was to be exercisable and any such numberification was to have effect as if enacted in the Act itself. When the Rules of 1906 were made by the local Government they had effect as if they were enacted in Act 7 of 1905. But the power companyld be exercised by the Governor under the Scheduled Districts Act ss. 6 and 7 to make fresh Rules. By that Act the Governor- General in Council companyferred on the local Government an equal or companycurrent power and this is clearly indicated by the word as the case may be in s. 7 of the Act. Those words do number, as it companytended, show that the local Government companyld only amend its own Rules. These words rather show that whoever made the rules the authority of the Act would make them binding. In our judgment the Rules of 1937 were validly enacted. In order to avoid this implication, the Rules are attacked as ultra vires Arts. 21 and 14. Article 21 is used because it is companytended that these Rules do number amount to law as we understand it, particularly where the Rules say that number the Criminal Procedure Code but its spirit is to govern the administration of justice. It is urged that this is number a law because it leaves each officer free to act arbitrarily. This is number a fair reading of the Rule. How the spirit of the Code is to be applied and number its letter was companysidered by this Court in Gurumayum Sakhigopal Sarma v. K. Ongbi Anisija Devi Civil Appeal No. 659 of 1957 decided on 9th of February, 1961 in companynection with the Code of Civil Procedure. With reference to a similar rule that the companyrts should be guided by the spirit and should number be bound by the letter of the Code of Civil Procedure this Court explained that the reason appeared to be that the technicalities of the Code, should number trammel litigation embarked upon by a people unused to them. In that case although a suit was ordered to be dismissed for default of appearance, an order was passed on merits. The question arose whether it was dismissed under 0.9 r. 8 or 0 . 17 r. 3 of the Code of Civil Procedure. It was held by this Court that it did number matter under which Order it was dismissed but that numbersecond suit companyld be brought on the same cause of action without getting rid of the order dismissing the suit. In this way this Court applied the spirit of the Code and put aside the technicalities by attempting to find out whether the dismissal was referable to 0. 9, r. 8 or 0. 17, r. 3 of the Code. That case illustrates how the spirit of the Code is used rather than the technical rule. In the same way, under the criminal administration of justice the technical rules are number to prevail. over the substance of the matter. The Deputy Commissioner in trying criminal cases would hold the trial according to the exigency of the case. In a petty case he would follow the summons procedure but in a heinous one he would follow the procedure in a warrant case. The question of a Sessions trial cannot arise because there is numberprovision for companymittal proceeding and there are numberSessions Judges in these areas. Therefore, the Deputy Commissioner who was trying the case observed that he was going to observe the warrant procedure and in the circumstances he was observing the spirit of the Code. Laws of this kind are made with an eye to simplicity. People in backward tracts cannot be expected to make themselves aware 8 52 of the technicalities of a companyplex Code. What is important is that they should be able to present their defence effectively unhampered by the technicalities of companyplex laws. Throughout the past century the Criminal Procedure Code has been excluded from this area because it would be too difficult for the local people to understand it. Instead the spirit of the Criminal Procedure Code has been asked to be applied so that justice may number fail because of some technicality. The argument that this is numberlaw is number companyrect. Written law is numberhing more than a companytrol of discretion. The more there is of law the less there is of discretion. In this area it is companysidered necessary that discretion should have greater play than technical rules and the provision that the spirit of the Code should apply is a law companyceived in the best interests of the people. The discretion of the Presiding Officer is number subjected to rigid ,control because of the unsatisfactory state of defences which would be offered and which might fail if they did number companyply with some technical rule. The removal of technicalities, in our opinion, leads to the advancement of the cause of justice in these backward tracts. On the other hand, the imposition of the Code of Criminal Procedure would retard justice, as indeed the Governors-General, the Governor and the other heads of local Government have always thought. We think, therefore, that Art. 21 does number render the Rules of 1937 ineffective. A similar attempt is made by companyparing these Rules with the Criminal Procedure Code applicable in the rest of India. It is companytended that this leads to discrimination. We think that the exigency of the situation clearly demands that the Criminal Procedure Code should number apply in this area. It is number discrimination to administer different laws in different areas. The Presidency Towns have got special procedures which do number obtain in other areas. We have known of trial by jury in one part of India for an offence which was number so triable in another. Similarly, what is an offence in one part ,of India is number an offence in another. Regional differences do number necessarily companynote discrimination and laws many be designed for effective justice in different ways in different parts of India if people are number similarly circumstanced. These backward tracts are number found suitable for the application of the Criminal Procedure Code in all its rigour and technicality, and to say that they shall be ,governed, number by the technical rules of the Code but by the substance of such rules is number to discriminate this area against the rest of India. It is companytended that there is discrimination between the Tuensang District and the other two districts of the State because in the other two districts the Code of Criminal Procedure applies. This seems to be stated in the judgment of Mr. Justice C. Sanjeeva Rao Nayudu who proceeded upon a companycession of the Advocate-General of Nagaland. We have, however, numberreason to think that the Advocate-General companyld have companyceded this point. It was made clear to us that there was some mistake and the assumption made by Nayudu J. was based on a misapprehension. It is number admitted by Mr. A, K. Sen on behalf of the respondents that the Criminal Procedure Code does number apply to any of the three districts and therefore there is numberquestion of any discrimination between one district and another in Nagaland. Lastly, it is companytended that the Rules themselves allow for discrimination because one officer may take something to be the spirit of the Criminal Procedure Code and another may number. The requirements of the case must determine what should be applied from the Criminal Procedure Code and what should number. The Rules have been purposely made elastic so that different kinds of cases and different situations may be handled number according to a set pattern but according to the requirements of the situation and the circumstances of the case. In a backward tract the accused is number in a position to defend himself meticulously according to a companyplex Code. It is, therefore, necessary to leave the Judge free so that he may would his proceedings to suit the situation and may be able to apply the essential rules on which our administration of justice is based untramelled by any technical rule unless that rule is essential to further the cause of justice. This would rather lead to less discrimination because each accused would be afforded an opportunity which his case and circumstances require. The Rules of 1937 were designed for an extremely simple and unsophisticated society and approximate to the rules of natural justice. It is impossible in such circumstances to, think, that because the Judge has more discretion than if he acted under the Criminal Procedure Code or is able to bring different companysiderations to the aid of administration of justice that there must be discrimination. If a Judge does number apply the spirit of the Code but goes against it or acts in a manner which may be companysidered to be perverse the High Court will companysider his action and set it right. As we said earlier the law has number attempted to companytrol discretion by Rules in this area but has rather left discretion free so that the rule may number hamper the administration of justice. As there is numbervested right in procedure the respondents cannot claim that they be tried under the Criminal Procedure Code in this State where the Code is excluded. In such a situation it is difficult to, find discrimination. It was lastly companytended that there is discrimination between one set of rules and another that in some of the other backward tracts of Assam the rules are different and a companyparative study was made before us of the different rules, as for example, Rules of 1874, 1937 and the Assam Frontier Administration of Justice Regulation, 1945 which applied to Balipura, Lakhimpur, Sadiya and Tirap tracts and had been applied in Tuensang Division in 1955. The main differences are in the matter of appeals against acquittals and the power of transfer. In so far as the appeals against acquittals are companycerned, it is, of companyrse, obvious that where such a power is number companyferred there cannot be an appeal against acquittals. In so far as transfer is companycerned, we see numberdifficulty because the rules were different to start with in different districts and even if the provisions for transfer may number be in one part the spirit of the Code of Criminal Procedure would permit transfer in that part. Similarly, in some places companyfirmation of sentence above 7 years is required and in some others there is only a right of appeal. This depends on how advanced each area is. The attempt, of companyrse, is to bring these territories under the Criminal Procedure Code ,applicable in the rest of India, by such stages as appear justified. As that stage is number yet reached little differences must exist but numberdiscrimination can be spelled out from the differences. Art. 371A of the Constitution itself companytemplates a different treatment of these tracts and the differences are justified by the vast differences between the needs of social companyditions in Nagaland and the various stages of development of different parts. We do number, therefore, companysider that a companyparison of these rules leads to any companyclusion that there is likelihood of discrimination which would offend the Constitution. We accordingly hold that the Rules of 1937 companytinue to be in force and govern the trial of these respondents. The Code of Criminal Procedure admittedly does number apply there and the Additional Deputy Commissioner was therefore right in holding the trial under the Rules of 1937. It is obvious that in following the spirit of the Code and in applying the warrant procedure the Deputy Commissioner followed the right procedure and the High Court was in error in thinking that neither the Rules of 1937, number any Rules applied to this area. We accordingly allow the appeals and set aside the order of the High Court. The trial of the respondents shall proceed under the Rules of 1937. We may, however, say that it would be better if, as soon as it is found to be expedient, all Rules are cancelled and one uniform set of Rules is made for the whole of this area. This would obviate having to find out through the mazes of history and the companygress ,of rules, numberifications and regulations what law is applicable. If any difficulty is felt in making new rules recourse may easily be taken to the provisions of s. 31 of the State of Nagaland Act which enables the President, by order, to remove any difficulty to give effect to the provisions of the State of Nagaland Act. The history of this area shows that there have been difficulties in the past in 85 5 ascertaining laws which were applicable at any point of time in any particular area and led to the passing of many Acts of British Parliament and of the Governor-General in Council to remove such difficulties.

Raju, J. LITTTTTTJ The appellant before us was the unsuccessful applicant in Miscellaneous Application No.2 of 1999 before the Special Court Trial of offences relating to transactions in securities at Bombay called for companyvenience as the Special Court . The appeal has been filed under Section 10 of the Special Court Trial of offences relating to transactions in securities Act, 1992 hereinafter referred to as the Act against the order of the Special Court dated 16.2.2000, whereunder the relief sought to set aside the Minutes of the Order dated 5.7.1995 in Miscellaneous Petition No.30 of 1995 and the Order dated 24.9.1997 in Miscellaneous Application No. 280 of 1997 earlier passed by the Special Court insofar as it related to the appellant and the premises of the appellant situated at Regent Chambers, Nariman Point, Bombay-400 021, on 2nd floor bearing unit Nos. 3 4 admeasuring approximately 2030 sq. ft. came to be rejected. The relevant facts insofar as they are necessary for a proper appreciation of the issues raised before us, need a brief mention before adverting to the grievance of the parties. M s Dhanraj Mills Private Ltd., the 5th respondent in this appeal, is a numberified party under the Act. On the information furnished by the Income Tax Department that public money belonging to Banks and Financial Institutions have been siphoned out into the accounts of the numberified party and which, in turn, came to be successively siphoned to Kenilworth Investment Company Private Ltd., the 6th respondent herein, and from them to CIFCO Properties Private Ltd., CIFCO Finance Ltd. and M s Champaklal Investments Respondents 2, 3, 4 6 , the Custodian filed Miscellaneous Petition No. 30 of 1995 against all those respondents. When the petition reached the stage of hearing by companysent of parties, Minutes of the Order dated 5.7.1995 came to be filed and recorded as per which, among other things Kenilworth Investment Company submitted to a decree in favour of Dhanraj Mills Private Ltd., in a sum of Rs.11,82,81,316/- with interest 20 per annum from 24.4.92 till date of payment and CIFCO Group of Companies and Champaklal Investment Company Private Ltd., submitted to a decree in favour of the 6th respondent and the decretal debts also stood charged in favour of Dhanraj Mills to receive payment from Kenilworth Investment. Clause 7 of the Minutes of the Order dated 5.7.95 declared the ownership of the 3rd respondent herein, in the premises bearing unit Nos. 2, 5, 6, 7 and 8 at Regent Chambers, Nariman Point, Bombay, in 2nd floor admeasuring 4931 sq. ft and unit No.5 in ground floor admeasuring 451 sq. ft. as well as the residential flat bearing unit No.36 in 3rd floor of Anita Apartment in Mount Pleasant Road at Malabar Hills admeasuring 575 sq. ft. Clauses 8, 12 and 13 on which both parties fixed their hopes read as follows The Respondent No.2 declares that one Western Press Pvt. Ltd. formerly known as Jayakrishna Pvt. Ltd. is the owner of the premises admeasuring approximately 2030 sq. ft. and described in Schedule A-3 hereunder written. The said premises are used and occupied by the Respondent Nos. 2 and 3 along with the said Western Press Pvt. Ltd. The Respondent Nos. 2 and 3 declare and undertake to this Honble Court that they will number claim any right, title or interest in the said premises mentioned in Schedule A-3. The respondent Nos. 2, 3 and the said Western Press Pvt. Ltd. undertake to this Honble Court that pending satisfaction of the decree the Respondent Nos. 2, 3 and the said Western Press Pvt. Ltd. will number alienate, encumber or part with possession of or create third party right, title or interest in the said property described in Schedule A-3 hereto or any part thereof, till the decree herein is marked satisfied. In the event of the decree herein becoming executable against the Respondent Nos.1 and 2 or 3, the Respondent No.2 and the Companies listed in Schedule C as well as the said Western Press Pvt. Ltd. and the said employee occupying the flat as per Schedule A-2, undertake to this Honble Court that on sale in execution being held and sanctioned by this Honble Court the Respondent No.2 and the said companypanies mentioned in the Schedule B hereto shall hand over the possession of the premises mentioned in Schedule A-1 to A-3 hereto to the purchaser. The companypanies mentioned in the Schedules B and C and the said employee will within one week from today file separate affidavits declaring that they have numberright, title or interest in the premises mentioned in Schedules A-1 to A-3, hereto as also giving the undertaking to this Honble Court to vacate the premises in their occupation in the event happening as stated above. Pursuant to the above, the Chairman of the appellant-company Mr. Milan Dalal filed on 28.7.95 an affidavit of undertaking number to alienate, encumber or part with possession of or create third party right, title or interest in the aforesaid property of the appellantcompanypany, till the decree is satisfied and in case of events happening as provided in Clauses 12 and or 13 of the Minutes of the Order further undertaking to vacate the premises in the occupation of the appellant. Since there was a default, the Custodian filed Miscellaneous Application No.280 of 1987 by way of execution proceedings against the respondent-companies which suffered a decree of companyrse number including or specifically initiating against the appellant and their property and the Special Court passed an order on 24.9.97 appointing a Receiver to take possession and to dispose of the properties by sale. At this stage, apparently apprehending similar companyrse of proceedings for execution by the Custodian against the properties in question of the appellant, Miscellaneous Application No.2 of 1999 came to be filed for the reliefs numbericed supra. The sum and substance of the claim in this application of the appellant was a that the appellantcompanypany is the absolute owner of the properties in question, b that they have number created any interest in the properties in favour of the 3rd respondent herein, c that the undertaking given on behalf of the appellant was wrong and unauthorised, d that numbersuch undertaking companyld have been given by any one else in respect of the property of the appellant unless duly authorised by the companypany e that at numberpoint of time the appellant was a party to any of the proceedings or it was represented by any companynsel or was ever been put on numberice of the orders to be passed affecting its rights interest, f that the appellant is neither a judgment debtor number it claims through a judgment debtor, g that it neither agreed to give guarantee number stand as surety for the payment of the debts of the judgment debtor and companysequently the properties of the appellant cannot be attached or proceeded against in any manner for realisation of the dues under the decree in question. The Special Court, after a careful companysideration of the respective companytentions of parties, held that the Minutes of the order dated 5.7.95 companyered also units 3 4 belonging to the appellant and it would be open to the Custodian to prefer an appropriate application for execution, as was done in the case of units 2, 5 to 8 as and when required. The Special Court also held that the said two units of the appellant also companystituted an integral part of the companypromise. As regards the ground based upon want of registration, the Special Court was of the view that the minutes of the order stood excepted from companypulsory registration and that in any event in view of Section 41 of the Maharashtra Co-operative Societies Act, 1960 it stood also exempted, having regard to the fact that the interests of the appellant in the properties being merely that of a tenant in companypartnership housing society and the right to occupy the flats flowing only from the ownership of shares, the same cannot be companysidered to be immovable property. Consequently, the application of the appellant came to be dismissed. Hence, this appeal. Dr. Rajeev Dhavan, learned senior companynsel appearing for the appellant, strenuously companytended, while reiterating the stand taken before the Special Court, that the appellant is an utter third party to the proceedings before the Special Court it being neither a numberified party number claiming through any of the parties and, as a fact, also number having been arrayed as one such, its properties cannot be made liable for the recovery of the dues in question. It is also further companytended that neither the appellant gave any undertaking number it stood as surety for the realisation of the amount secured in the minutes of the order dated 5.7.95 and, therefore, cannot be said to have encumbered its property by any specific thing in writing and the undertaking, if any, given on its behalf is number only an unauthorised one number binding upon the appellant but that it has been given also under a mistaken view of facts and, therefore, the same companyld number adversely affect the rights of the appellant. Argued the learned senior companynsel further that in the absence of registration as envisaged under Section 17 1 b of the Registration Act, it cannot in any manner affect the rights of the appellant in immovable property and that the appellants property cannot be proceeded against. Shri Shiraz Rustomjee, learned companynsel for the Custodian, while drawing inspiration from the reasoning of the Special Court, endeavoured to sustain the companyclusions arrived at by the Special Court. It is the companytention of the learned companynsel that the very object of the companysent order passed on 5.7.95 was to effectively ensure the recovery of the dues and it is too late in the day to retrace steps to disown responsibility and liability in this regard. The case on hand is said to squarely fall under Section 17 2 vi of the Registration Act and that the attempt of the appellant is to somehow delay indefinitely realisation of the dues. The learned companynsel on either side also elaborately invited our attention to portions of the order under challenge to substantiate their respective stand. We have carefully companysidered the submissions of the learned companynsel appearing on either side. In our view, apart from the lack of merits in the challenge made to the well companysidered order of the Special Court, the appellants case does number merit companyntenance in our hands for another reason also. The parties before the Special Court having companysented and invited the Court to pass the order dated 5.7.95 and obtained benefits by giving undertaking of their own and on behalf of the appellant-company, ought number to be allowed to take shelter under technicalities to overreach the Court, which believed the parties and companynsel appearing on their behalf and acted in good faith by accepting the terms suggested by the parties themselves. The questions, which loom large for companysideration in this appeal, are as to what are the legal companysequences flowing from the companysent order of the Special Court dated 5.7.95 and the affidavit filed by Mr. Milan Dalal on 28.7.95 as the Chairman of the appellant-company? and do they suffer any legal infirmities such as want of registration, want of authority and mistake of fact so as to render them either numberest or unenforceable? If it is held that the companysent order dated 5.7.95 and the affidavit dated 28.7.95 are binding upon number only the parties but upon the appellant, as one who has undertook to abide by certain companysequences and such an undertaking was given to secure any or some benefit for any one or more of the parties from the Court, the facts such as the appellant number being itself a party in the proceedings before the Court and it was only a third party and that the property in question is of the appellant and that the appellant is neither a numberified party number one claiming through such numberified party or the judgment debtor pale into insignificance and are rendered wholly irrelevant in determining the actual issues arising. The Minutes of the order dated 5.7.95 came to be passed as a companysent order, decreeing for the recovery of Rs.11,82,81,316/- with interest 20 and the manner in which such decree has to be satisfied as well as proportionate liabilities, inter se, of the parties thereto. The permission for payment in instalments sought for has been companyntenanced. Clauses 8, 12 and 13 make it abundantly clear that Respondents 2 and 3 before the Special Court declared that they will number claim any right, title or interest in the premises in question Schedule A3 properties and Respondents 2 and 3 before the Special Court as well as the appellant undertook to the Special Court, number to alienate, encumber or part with possession of or create third party right, title or interest in or over the Schedule A3 properties or any part thereof pending satisfaction of the decree passed therein. The companysent decretal order further stipulated that in the event of the decree becoming executable the Companies including the appellant undertook to hand over possession of the properties mentioned in Schedules A1 to A3 to the purchaser, on the sale being held and sanctioned by the Special Court. In carrying out the directions companytained in the above companysent decretal order, Mr. Milan B. Dalal, Chairman of the appellant-company, filed the required affidavit of undertaking dated 28.7.95. In the said affidavit of undertaking, while affirming the factum of ownership of Western Press Pvt. Ltd., to the property in question and numbericing the factual position that the said property is being used and occupied by M s CIFCO Ltd. and CIFCO Finance Ltd., it has been stated in unmistakable terms in paragraphs 2 and 3 as follows- In terms of the Minutes of the order dated 5th July, 1995, passed by the Honble Special Court, Western Press Pvt. Ltd., do hereby undertake that number to alienate, encumber or part with possession of or create third party right, title or interest in the aforesaid premises till the decree is marked satisfied. On behalf of the Company, I hereby undertake to this Honble Court that in the events happening as provided in Clauses 12 and 13 of the said Minutes, the companypany undertake to vacate the premises in their occupation. Though for fixing liability as such the mere fact that the judgment debtor companypanies and the appellant-company being part of the same group of companypanies companypletely companytrolled by Dalal family and its group companycerns may number be sufficient as such, the said factual information indicating that the cluster of companypanies is a mere cloak for these groups will be a just and relevant piece of material in appreciating the foul play and attempts on the part of the Directors of the appellant and their opportunistic stands adopted, as it suits them, from time to time, number only before the Court below but even in this Court. Mr.Milan B. Dalal has been found to be and seems to have been openly allowed by others without demur to liberally play the multifarious roles he held in different companypanies of Dalal group families. Though the authority of Milan B. Dalal as Chairman of the appellant-company was seriously questioned by another Director of the appellant at a later stage, the rejoinder filed in this appeal by the very same Milan B. Dalal, in support of the stand of the appellantcompanypany patently betrays the sinister motive of all those who are fighting under the shadow of the appellant-company harping upon some technicalities of law or otherwise unmindful of the fact realities starring at them, who cannot disown their own responsibilities too in the matter. We are companystrained to observe that both the parties as well as their advisers who have been responsible for the respective roles they seem to have played in misguiding and misleading the Special Court to pass a particular order, assuring the existence of certain obvious facts, ought number to be allowed to either retrace their steps or derive, retain or enjoy the fruits of their own machinations and manipulations by number assuming different postures and asserting facts which they deliberately withheld from the Court and were found to be giving a different picture altogether when such orders came to be passed. This companydemnable companyduct of the parties alone, in our view, is more than sufficient to reject their claims number made in desperateness under the companyer of pretended and invented illegalities. On a careful companysideration of the events which occurred before the Special Court which made the said Court to believe the existence of certain facts on the representations made before it, the orders passed and the affidavits found and numbericed to have been filed from time to time before the Special Court, the Special Court companyld number be either faulted for its companyclusions or that the specific findings arrived at that the companysent order dated 5.7.95 taken together with the affidavit of undertaking dated 28.7.95 companyered within its fold the property of the appellant-company in question for being proceeded against in execution of the decree passed for recovering the amount due as declared in the companysent order dated 5.7.95, companyld number be said to be vitiated in any manner warranting our interference. Consequently, it would be permissible for the Custodian to proceed against the property companyprised in Units 3 and 4 belonging to the appellantcompanypany also by means of an appropriate execution application as and when he choose to do so. The plea of lack of authority in Milan B. Dalal to bind the appellant needs mention only to be rejected even for the simple reason that the Directors of the appellant-company, who allowed Milan B. Dalal a free hand as Chairman of the appellantcompanypany to deal with the matter, cannot be permitted to blow hot and companyd as it suits them. Equally untenable is the pretended mistake of fact which, in our view, is numberhing but a self-serving attempt found to be made as a pure afterthought to wriggle out of the lawful companymitments made and retrace the position in which the Directors of the companypany have allowed themselves to be landed in. So far as the challenge based on the want of registration under Section 17 1 b of the Registration Act is companycerned, we are of the view that the same is neither genuine number has any merit whatsoever or capable of being companyntenanced at our hands. The reasons assigned by the Court below to reject the said plea cannot be companysidered to be either unjust or untenable. Even otherwise, a careful analysis and companysideration of the companysent order dated 5.7.95 as also the affidavit of undertaking dated 28.7.95 made in this case disclose numberintention, per se, to purport or operate to create, declare, assign, limit or extinguish in present or in future any right, title or interest, whether vested or companytingent in the immovable property of the value of Rs. 100 and upwards. On the other hand, the terms as well as the tenure of the above proceedings make clear the dominant intention and purpose of them to be merely an undertaking given by a third party to the proceedings to the Court to abide by a particular companyrse of action if the judgment-debtor fails to satisfy the decree. Even in cases of such default by the judgment-debtor in this case, the undertaking as well as the companysent decree only enables the Custodian to initiate execution proceedings against the properties in question of the appellantcompanypany and it is only in the event of such sale, the question of companying into existence any document which would require companypulsory registration under Section 17 of the Act would arise and number at this stage. In substance and effect what has been undertaken to the Court is to preserve the properties intact for being proceeded against in a given eventuality and deliver peaceful possession of the property in the event of such action becoming necessary. Declaration or undertaking companyceding such liberty of action cannot be companystrued to fall under clause b of Section 17 1 of the Registration Act. It is important to numbere that both the companysent decree as well as the undertaking do number, by itself, envisage the execution of any deed or document also to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest whether vested or companytingent of the value of Rs.100 or upwards in immovable property. The companysent order as also the undertaking given in this case would squarely fall within the exempted category of any decree or order of the Court envisaged under Section 17 2 and take it outside the excepted category of cases for the simple reason that it does number deal with, as such, any immovable property envisaged in the manner of clause b of Section 17 1 of the Registration Act. In the first instance, the decree order in question does number companyprise any immovable property as such. In any event, in a matter like the one before us where the companysent order which came to be passed on agreement as well as the undertaking given in pursuance thereof, was an undertaking to the Court, the words subject-matter of the suit need number be companyfined to the subject-matter of the plaint or subjectmatter of the dispute alone, but would include all that which is made to become part of the proceedings in order to finally and effectively settle all the disputes between the parties. Shorn of all these unnecessary companytroversies number raised, we are also of the view that in a case where an item of property is referred to in an undertaking given to the Court as one which can be proceeded against in the event of the judgmentdebtor failing to pay the decretal amount within the stipulated time, the immovable property does number get ipso facto affected or suffer in anyone of the manner envisaged under Section 17 1 so as to require companypulsory registration. That apart, the provisions companytained in Section 145 CPC also would enure to the benefit of the Court as well as the Custodian to proceed against the appellant in enforcement of the undertaking given to the Court and there are numbermerits in the companytentions sought to be urged to the companytrary.

Ashok Narain v. Union of India, 1982 2 SCC 437 Smt. Rekhaben Virendra Kapadia v. State of Gujarat, 1979 2 SCC 566 Sheikh Salim v. The State of West Bengal, 1975 1 SCC 653 Rajendrakumar Natvarlal Shah v. State of Gujarat, 1988 3 S.C.C. 153 Olia Mallick v. The State of West Bengal, 1974 1 SCC 594 Golam Hussain v. The Commissioner of Police, 1974 3 SCR 613 Odut Ali Miah v. The State of West Bengal, 1974 4 SCC 129 Vijay Narain Singh v. State of Bihar, 1984 3 SCC 14 Gora v. State of West Bengal, 1975 2 SCR 996 Rai Kumar Singh v. State of Bihar, 1986 4 SCC 407 Smt. Hemlata Kantilal Shah v. State of Maharasthra, 1981 4 SCC 647, referred to. In appropriate cases it companyld be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention companyld be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is number only adequately explained but also is found to be the result of the recalcitrant or refractory companyduct of the detenu in evading arrest, there is warrant to companysider the link number snapped but strengthened. 219C-D Mohammed Saleem v. Union of India, 1989 3 Delhi Lawyer 77 Bhawarlal Ganeshmalji v. State of Tamil Nadu, 1979 1 SCC 465 Shafiq Ahmad v. District Magistrate, Meerut, 1989 4 SCC 556, referred to. Seizure of the detenus passports was numberdoubt one of the factors that the detaining authority should have taken and did in fact take into account, but it was for him to assess the weight to be attached to such a circumstance in arriving at his final decision and it is number open to the Court to interfere with the merits of his decision. 221E-F From the records it appears that the bail application and the bail order were furnished to the detaining authority on his enquiry. It is difficult, therefore, to accept the submission of the State Government that those were number relied on by the detaining authority. 223A-B The companystitutional requirement of Article 22 5 is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to making the detention order must be companymunicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is immaterial whether the detenu already knew about their companytents or number. 223E-F Ramchandra A. Kamat v. Union of India, 1980 2 SCR 1072 Frances Coralia Muffin v. W.C. Khambra. 1980 2 SCR 1095 Smt. Ichhu Devi Choraria v. Union Of India, 1981 1 SCR 640 Pritam Nath Hoon v. Union of India, 1981 1 SCR 682 Shri Tushar Thakkar v. Union of India, 1980 4 SCC 499 Lallubhai Jogibhai Patel v. Union of India, 1981 2 SCC 427 Kirit Kumar Chaman Lal Kundaliya v. Union of India, 1981 2 SCC 436 Smt. Ana Carolina DSouza Union of India, 1981 Suppl. SCC 53 Mehrunissa v. State of Maharashtra, 1981 2 SCC 709 Mohd. Zakir v. Delhi Administration, 1982 3 SCC 216 and Khudiram Das v. State of West Bengal, 1975 2 SCR 832, referred to. If the documents which formed the basis of the order of detention were number served on the detenu along with the grounds of detention, in the eye of law there would be numberservice of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio. 225D-E State of U.P. v. Kamal Kishore Saini, 1988 1 SCC 287 Union of India v. Manoharlal Narang, 1987 2 SCC 241 S. Gurdip Singh v. Union of India, 1981 2 SCC 419 Ichhu Devi Choraria v. Union of India, 1981 1 SCR 640 Smt. Shalini Soni v. Union of India, 1981 1 SCR 962, referred to. Haridas Amarchand Shah v. K.L. Verma, 1989 1 SCC 250 distinguished. The bail application and the bail order, in the instant case, were vital materials for companysideration. If those were number companysidered the satisfaction of the detaining authority itself would have been impaired, and if those had been companysidered, they would be documents relied on by the detaining authority though number specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves companyld number be said to have been companyplete.226A-B There is numberalternative but to hold that number-supply of essential documents to the detenu amounted to denial of the detenus right to make an effective representation and that it resulted in violation of Article 22 5 of the Constitution rendered the companytinue detention of the detenu illegal and entitling the detenu to be set at liberty. 226B-C Sections 9 and 10 of the COFEPOSA Act imply an obligation on the part of the detaining authority to place the facts and materials that occurred between the date of detention and the date of declaration, so as to justify prolongation of the period of detention. 228D-E Smt. Rekhaben Virendra Kapadia v. State of Gujarat Ors., 1979 2 SCC 566 Smt. Madhu Khanna v. Administrator, Union Territory of Delhi, 1986 4 SCC 240, referred to. CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 49 of 1990. From the Judgment and Order dated 13.2.1989 of Delhi High Court in Crl. W. No. 25 of 1989. R. Setia, C.S. Vaidyanathan and K.V. Viswanathan for the Appellant. C. Mahajan, Ms. Sushma Suri, P. Parmeshwaran, A.K. Srivastava and T.T. Kunhikannan for the Respondents. The Judgment of the Court was delivered by N. SAIKIA, J. Special leave granted. After the Appellant landed at Trivandrum Airport from Abu Dhabi, he was intercepted by the customs officials detecting that he smuggled 13 gold sheets weighing 1280 gms. valued at Rs.4,26,240 companycealed inside the plywood panels of his blue suitcase which was seized along with his two passports, old and new. He was arrested on 31-1-1988 and was produced before the Chief Judicial Magistrate Economic Offences Ernakulam who remanded him to judicial custody till 12-2-1988. On 12-2-1988 he was granted bail on companydition, inter alia, that he would report before the Superintendent Intelligence Air Customs, Trivandrum on every Wednesday until further orders, and that he would number change his residence without prior permission of Court to 25-2-1988. The impugned detention order dated 25-6-1988 was passed by the Home Secretary, Government of Kerala. It stated that the Government of Kerala was satisfied with respect to the appellant that with a view to preventing him from smuggling gold it was necessary to detain him and, therefore, in exercise of powers companyferred by section 3 1 i of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Central Act 52 of 1974 , hereinafter referred to as the COFEPOSA Act, the Government of Kerala directed that he be detained and kept in custody in the Central Prison, Trivandrum. The grounds of detention, which were also served, inter alia, gave the details as to how the smuggled gold was detected in his possession having been smuggled into India in violation of the provisions of the Customs Act, 1962, Foreign Exchange Regulation Act, 1973 and Import and Export Control Act, 1947 what were his statements at the time of seizure of his blue suitcase, his new and old passports and the air ticket used for the journey from Dubai to Trivandrum and the return open air ticket from Bombay to Abu Dhabi and the gist of his statements given on 30/31- 1988 under section 108 of the Customs Act, 1962 before the Intelligence Superintendent, Air Customs, Trivandrum. It was also stated that after his arrest on 31-1-1988 he was produced before the Additional Chief Judicial Magistrate Economic Offences Ernakulam on the same date and he was remanded to judicial custody and was subsequently released on bail and that even though the departmental adjudication and prosecution proceedings under Customs Act were pending against him, the detaining authority was satisfied that he should be detained under section 3 1 i of the COFEPOSA Act with a view to prevent him from smuggling gold to Trivandrum. On 23-8-1988 the appropriate authority declared that he was satisfied that the detenu was likely to smuggle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to section 9 1 of the COFEPOSA Act. On 24th September, 1988, the detenu appeared before the Advisory Board which reported that there was sufficient cause for his detention. The detenu challenged his detention moving a Habeas Corpus petition under Article 226 of the Constitution of India read with section 483 Cr. C.P. in the High Court of Delhi and the same having been dismissed in limine the appellant appeals therefrom by special leave. In para 11 of the Special Leave Petition it has been stated that the various grounds urged in the writ petition before the High Court have also been added in this petition and the writ petition itself has been annexed as Vol. II to the Special Leave Petition. The main grounds on which the detention order is being challenged by the learned companynsel for the appellant Mr. C.S. Vaidyanathan, inter alia, are that after the event there was inordinate delay in passing the detention order which showed that there was numbergenuine need for detention of the appellant that there was inordinate and unexplained delay of 38 days in execution of the detention order that all the documents and materials, particularly the appellants bail application, the bail order, the show cause numberice and his reply thereto were number placed before the detaining authority that these documents and the fact that the appellants old and new passports were seized and without those it would number be possible for the appellant to carry on smuggling were number brought to the numberice of the declaring authority and ,hat there was number-application of mind. Mr. T.T. Kunhikannan, the learned companynsel for the State of Kerala submits, inter alia, that there was numbersuch delay between the date of detention and the date of passing the impugned order of detention as to make the grounds stale or to snap the relation that the delay in execution of the detention order has been explained that the bail application as well as the bail order were placed before the detaining authority but the same having number been referred to or relied on by the detaining authority the companyy thereof was number required to be furnished to the detenu along with the grounds of detention that all the papers which were placed before the detaining authority for passing the order of detention were also placed before the declaring authority and it was number necessary to place the show cause numberice and the detenus reply thereto and that the detention order suffered from numberinfirmity whatsoever and this appeal is liable to be dismissed. Mr. V.C. Mahajan, the learned companynsel for the Union of India emphatically submits that all the documents and materials that were required to be placed before the declaring authority were duly placed and on companysideration of the relevant materials the declaring authority validly made the declaration which was, therefore, unassailable. We number take the first submission, namely, delay in passing the detention order. Mr. Vaidyanathan, referring to paragraph 6 of the Writ Petition, submits that while the interception and seizure took place on 30-1-1988 and the detenu was arrested formally on 31-1-1988, the detention order was passed only 25-6-1988 and this delay remained unexplained and as such there was numbernexus between the incident and the detention. In the companynter affidavit filed in this Court there is numberspecific denial on this point. Mr. Kunhikannan submits that it so happened because this ground was number taken in the Special Leave Petition. The appellant having stated that the grounds urged in the Writ Petition should also be added, it cannot be said that this ground was number taken. Of companyrse when other ground surged in the Writ Petition have also been taken specifically in the Special Leave Petition this ground companyld also have been so taken. However, on the basis of the Records Mr. Kunhikannan submits that the Collector of Customs sent the proposal for detention on 27-5-1988 along with the draft grounds, and the Screening Committee meeting proposed to be held on 10th June, 1988 was postponed and was held on 21-6-1988 on which date the detenus case was companysidered to be fit for detention under the COFEPOSA Act. It is submitted for the State that thorough investigation of the case was required on the part of the Customs authorities both for the proceedings under the Customs Act and for prosecution in the criminal Court, and as such the proposal companyld number have been hurried through. These facts have number been shown to be untrue. Under the above circumstances can it reasonably be held that the nexus between the Smuggling Act and the detention order was snapped or that the grounds became stale? Where the seemingly long time taken for passing the detention order after the prejudicial act is the result of full and detailed investigation and companysideration of the facts of the case, the ground cannot be held to be remote and the detention cannot be held to be bad on that ground. In Ashok Narain v. Union of India, 1982 2 SCC 437, where the detenu was apprehended for breach of Foreign Exchange Regulation in February, 1981 and without launching any prosecution the detenu was detained in October, 1981 the passage of time being the result of full and detailed companysideration of facts and circumstances of the case after thorough examination at various levels, this Court observed that it companyld number be said that the detention was in any way illegal inasmuch as the detaining authority had fully and satisfactorily applied his mind to the question of detention. As was held in Smt. Rekhaben Virendra Kapadia v. State of Gujarat, 1979 2 SCC 566, whether the time lag between the companymission of the offence and the detention was enough to snap the reasonable nexus between the prejudicial activity and the purpose of detention would depend upon the facts of each case. The test of proximity is number a rigid or mechanical calendar test to be blindly applied by merely companynting the number of months and days between the offending act and the order of detention. The question is whether the past activities of the detenu were such that the detaining authority companyld reasonably companye to the companyclusion that the detenu was likely to companytinue in his unlawful activities. In Sheikh Salirn v. The State of West Bengal, 1975 1 SCC 653, there was a gap of about 4 months in between. The explanation of the interval was that the petitioner was being prosecuted and the order of discharge had to be obtained on June 17, 1972. The order of detention was passed 4 days before the order of discharge was passed. This Court repelling the companytention observed We do number suppose that the length time which a decision takes necessarily reflects the care or openness brought to bear upon it. In Rajendrakumar Natvarlal Shah v. State of Gujarat, 1988 3 SCC 153, even unexplained delay of 5 months in that case in making the order against economic offenders under the COFEPOSA Act or other anti-social elements such as those involved in illicit traffic in liquor trade under Gujarat Prevention of Anti-Social Activities Act having large resources and influence, it was held, would number be sufficient to vitiate the order if the grounds were number stale and the nexus between the grounds and the order of detention still existed. It was observed that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the COFEPOSA Act and the delay in companyplying with the procedural safeguards of Article 22 5 of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is number inflexible. Mere delay in making of an order of detention under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the companyrts should number merely on account of the delay in making of an order of detention assume that such delay, if number satisfactorily explained, must necessarily give rise to an inference that there was numbersufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was number genuinely reached. Taking of such a view would number be warranted unless the Court finds that the grounds are stale or illusory or that there was numberreal nexus between the grounds and the impugned order of detention. In that case, there was numberexplanation for the delay between February 2, and May 28, 1987, yet it companyld number give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was number genuine or that the grounds were stale or illusory or that there was numberrational companynection between the grounds and the order of detention. This Court reiterated what was stated in Olia Mallick v. The State of West Bengal, 1974 1 SCC 594 Golam Hussain v. The Commissioner of Police, 1974 3 SCR 613 Odut Ali Miah v. The State of West Bengal, 1974 4 SCC 129 and Vijay Narain Singh v. State of Bihar, 1984 3 SCC 14. The Court also referred to Gora v. State of West Bengal, 1975 2 SCR 996 Raj Kumar Singh v. State of Bihar, 1986 4 SCC 407 and Smt. Hemlata Kantilal Shah v. State of Maharashtra, 1981 4 SCC 647. Applying the law enunciated and settled by the foregoing decisions we are of the view that in this case, companysidering the given explanation of the period in between the interception on 30-1-1988 and the order of detention on 25-6-1988 the nexus was number snapped and the ground was number rendered stale and the order of detention was number rendered invalid thereby. The submission is accordingly rejected. As regards the submission as to delay in execution it was urged. that there was inordinate and unexplained delay in execution of the detention order passed on 25-6-1988 as the detenu was taken into custody only on 2-8-1988 despite the fact that the detenu was reporting in companypliance of the bail order. Relying on a full bench decision of the Delhi High Court in Mohammed Saleem v. Union of India, since reported in 1989 3 Delhi Lawyer 77, it is submitted that this delay of 38 days was indicative of the fact that there was numbergenuine need for the detention order. This ground though taken in the Writ Petition was number repeated specifically in the Special Leave Petition and Mr. Kunhikannan prayed for an opportunity, for filing an additional companynter affidavit, which we declined. However, explaining the delay companynsel points out from the Records that on 27-6-1988 the Home Secretary wrote to the Superintendent of Police, Malapuram, with detailed instructions requesting him to arrange for the immediate execution of the detention order. On 19-7-1988 a teleprinter message was sent by the Home Secretary to the Superintendent of Police, in the nature of a reminder, requesting that the person be immediately apprehended and companypliance reported and that the delay in execution may also be reported. On 27-7-1988 the Superintendent of Police, Malapuram wrote back to the Home Secretary that the detention order companyld number be executed since the warrantee was absconding and his present whereabouts were number known and that the C.I. had been instructed to make all possible efforts to apprehend the warrantee. On 2-8-1988 the Superintendent of Police, Malapuram sent a wireless message to the Home Secretary stating that the detention order had been served on the detenu on 2-8-1988 at his residence and his acknowledgement obtained and he had been sent to the Central Prison, Trivandrum. Mr. Vaidyanathans submission that the detenu companyld number have been absconding in view of his reporting as required by the bail order is number acceptable. The second companydition in the bail order said that he will number change residents without prior permission of Court to 25-2-1988. There was numbermention regarding the period thereafter. There is also numberstatement in the affidavit to the effect that the detenu was all along available at his residence or that he had number changed it. But even assuming that he was residing there, there is numberreason to disbelieve the statement of the police that they were unable to find him earlier than they actually did. Where the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be bad on that ground. In Bhawarlal Ganeshmalji v. State of Tamil Nadu and Anr., 1979 1 SCC 465, where the appellant had been evading arrest and surrendering after three years of the making of order of detention under the COFEPOSA Act the order was held to be still effective as the detenu himself was to be blamed for the delay. This Court observed that there must be a live and proximate link between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely, the prevention of smuggling activities. In appropriate cases it companyld be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention companyld be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is number only adequately explained but also is found to be the result of the recalcitrant or refractory companyduct of the detenu in evading arrest, there is warrant to companysider the link number snapped but strengthened. In that case the order of detention was made on December 19, 1974. The detenu was found to be absconding. Action was taken pursuant to section 7 of the COFEPOSA Act and he was proclaimed as a person absconding under section 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local daily newspapers. Several other steps were taken despite which he companyld number be arrested until he surrendered himself on February 1, 1978. In Shafiq Ahmad v. District Magistrate, Meerut, 989 4 SCC 556, relied on by appellant, it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case. Where reason for the delay was stated to be abscondence of the detenu, mere failure on the part of the authorities to take action under section 7 of the National Security Act by itself was number sufficient to vitiate the order in view of the fact that the Police force remained extremely busy in tackling the serious law and order problem. However it was number accepted as a proper explanation for the delay in arresting the detenu. In that case the alleged incidents were on April 2/3/9, 1988. The detention order was passed on April 15, 1988 and the detenu was arrested on October 2, 1988. The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was number based on a bona fide and genuine belief that the action or companyduct of the petitioner were such that the same were prejudicial to the maintenance of public order. Sabyasachi Mukharji J., as my Lord the Chief Justice then was, observed that whether there was unreasonable delay or number would depend upon the facts and circumstances of a particular situation and if in a situation the person companycerned was number available and companyld number be served, then the mere fact that the action under section 7 of the Act had number been taken, would number be a ground for holding that the detention order was bad. Failure to take action even if there was numberscope for action under section 7 of the COFEPOSA Act, would number by itself be a decisive or determinative of the question-whether there was undue delay in serving the order of detention. In Shafiqs case the affidavit affirmed by the detaining authority showed that several raids of the petitioners premises for the service of the order dated 15-4-1988 were companyducted and the authorities had made all efforts to serve the order on the detenu, but he was all along absconding and the house of the petitioner for this purpose was raided on several occasions. However, in view of the fact that in that case from April 15, 1988 to May 12, 1988 numberattempt had been made to companytact or arrest the petitioner and there was numberexplanation as to why from September 27, 1988 to October 2, 1988 numberattempt had been made, there was unexplained delay and it was, therefore, number possible for the Court to be satisfied that the District Magistrate had applied his mind and arrived at the subjective satisfaction that there was genuine need for detention of the detenu. The detention order was accordingly quashed. We have already numbered how in the instant case the Home Secretary sent detailed instructions to the Superintendent of Police, Malapuram on 27-6-1988 and sent the teleprinter message on 19-7-1988 and the Superintendent of Police wrote back on 27-7-1988 stating that the detenu was absconding and his whereabouts were number known and all possible efforts were being made to execute the order and on 2-8-1988 the Superintendent of Police reported that the order was served on 2-8-1988 at his residence and that he was sent to the Central Prison, Trivandrum. Though it companyld number be denied that the detenu was reporting before the Superintendent Intelligence Air Customs, Trivandrum on every Wednesday, the Superintendent of Police, Malapuram apparently was number aware of it. Under the above facts and circumstances we are of the view that there was numberinordinate and unexplained delay in the period of 38 days between the detention order and its execution so as to snap the nexus between the two or to render the grounds stale or to indicate that the detaining authority was number satisfied as to the genuine need for detention of the detenu. This submission is accordingly rejected. We may pause here to point out that the circumstances in the present case seem to indicate a certain degree of lack of companyrdination between the detaining authorities and those entrusted with the execution of the detention order. This is clearly seen from two circumstances in the present case. Though the detention order was sent for service on 27-6- 1988, a reminder was issued only on 19-7-1988. Apparently, the Superintendent of Police was finding it difficult to trace the detenu but he did number report this immediately and mentioned it to the detaining authority only on 27-7-1988. He was obviously number aware that, under the terms of the bail order the detenu had to report every week at the Customs Office. If he had reported his difficulty earlier or if the detaining authorities had apprised him of the terms of the bail order, it would have been possible to have had the detention order served earlier. These companymunication gaps should, we think, be avoided since it is of the very essence of a detention order to have it served at the earliest. While we have accepted the explanation tendered in the present case for this delay, we would like the State to ensure that such delays do number occur as, apart from giving the detenu a ground for attacking the detention order. such delay really tends to frustrate and defeat the very purpose of preventive detention. The next submission of companynsel was that the detaining authority should have realised that the seizure of the detenus passports was by itself sufficient to restrain the detenus smuggling activities, if any, and refrained from passing the order of detention. We see numberforce in this companytention. This was numberdoubt one of the factors that the detaining authority should have taken and did in fact take into account but it was for him to assess the weight to be attached to such a circumstance in arriving at his final decision and it is number open to us to interfere with the merits of his decision. We, therefore, reject this companytention of Mr. Vaidyanathan. The next submission is that of number-supply of the bail application and the bail order. This Court, as was observed in Mangalbhai Motiram Patel v. State of Maharashtra, 1981 1 SCR 852, has forged certain procedural safeguards for citizens under preventive detention. The Constitutional imperatives in Article 22 5 are two-fold a The detaining authority must, as soon as may be i.e. as soon as practicable, after the detention companymunicate to the detenu the grounds on which the order of detention has been made, and 2 the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without companyies of such documents, the grounds of detention would number be companyplete. The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation. This has been settled by a long line of decisions Ramachandra A. Kamat v. Union of India, 1980 SCR 1072 Frances Coralie Mullin v. W.C. Kharnbra Ors., 1980 2 SCR 1095 Smt. Ichhu Devi Chararia v. Union of India, 1981 SCR 640 Pritam Nath Hoon v. Union of India, 1981 1 SCR 682 Shri Tushar Thakkar v. Union of India, 1980 4 SCC 499 Lallubhai Jogibhai Patel v. Union of India, 1981 2 SCC 427 Kirit Kumar Chaman Lal Kundaliya v. Union of India, 1981 2 SCC 436 and Smt. Ana Carelina DSouza v. Union of India, 1981 Suppl. SCC 53. It is immaterial whether the detenu already knew about their companytents or number. In Mehrunissa v. State of Maharashtra, 1981 2 SCC 709, it was held that the fact that the detenu was aware of the companytents of the documents number furnished was immaterial and number-furnishing of the companyy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has numberaccess to his own documents. In Mohd. Zakir v. Delhi Administration, 1982 3 SCC 2 16 it was reiterated that it being a Constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passue the grounds of detention, those should be furnished at the earliest so that the detenu companyld make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of Constitutional safeguards enshrined in Article 22 5 . It is also imperative that if the detenu was already in jail the grounds of detention are to show the awareness of that fact on the part of the detaining authority, otherwise there would be number-application of mind and detention order vitiated thereby. In the instant case though the order of detention ex-facie did number mention of the detenu having been in jail, in paragraph 3 of the grounds of detention it was said that he was arrested by the Superintendent Intelligence Air Customs, Trivandrum on 31-1-1988 and he was produced before the Additional Chief Judicial Magistrate Economic Offences , Ernakulam the same day. It was clearly said You were remanded to judicial custody and you were subsequently released on bail, From the Records it appears that the bail application and the bail order were furnished to the detaining authority on his enquiry. It cannot, therefore, be said that the detaining authority did number companysider or rely on them. It is difficult, therefore, to accept the submission of Mr, Kunhikannan that those were number relied on by the detaining authority. The bail application companytained the grounds for bail including that he had been falsely implicated as an accused in the case at the instance of persons who were inimically disposed towards him, and the bail order companytained the companyditions subject to which the bail was granted including that the accused, if released on bail, would report to the Superintendent Intelligence Air Customs, Trivandrum on every Wednesday until further order, and that he will number change his residence without prior permission of companyrt to 25-2-1988. This being the position in law, and number-supply of the bail application and the bail order having been apparent, the legal companysequence is bound to follow. In Khudiram Das v. State of West Bengal, 1975 2 SCR 832, this Court held that where the liberty of the subject is involved it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is number deprived of his personal liberty otherwise than in accordance with law. The Constitutional requirement of Article 22 5 is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to making the detention order must be companymunicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention. It is, therefore, number only the right of the Court, but also its duty as well, to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction. The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it, it has number allowed them to influence its satisfaction. The Court is entitled to examine the companyrectness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which companyld have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority. From the decision in Ramesh Yadav v. District Magistrate, Etah Ors., 1985 4 SCC 232, it can be said that the facts of the detenu having been in jail and his being granted bail are by themselves number enough to justify the passing of the detention order. In that case it was mentioned in the grounds of detention At this time you were detained in the District Jail, Mainpuri and you have filed an application for bail in the companyrt of law which is fixed for hearing on September 17, 1984, and there is positive apprehension that after having bail you will companye out of the jail and I am companyvinced that after being released on bail you will indulge in activities prejudicial to the maintenance of public order. It was observed that the detention order was passed as the detaining authority was apprehensive that in case the detenu was released on bail, he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should number ordinarily be passed. The detention order was accordingly quashed. In State of U.P. v. Kamal Kishore Saini, 1988 1 SCC 287, the application of a companyaccused as well as statements made in the bail application filed on behalf of the detenu alleging that the detenu was falsely implicated and the Police report thereon were number produced before the detaining authority before passing the detention order. Holding that the detention order was invalid on that ground, it was observed Similarly with regard to ground No. 3, the application of the companyaccused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon, were number produced before the detaining authority before passing of the detention order It is incumbent to place all the vital materials before the detaining authority to enable him to companye to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. Non-consideration of the bail order would have, therefore, in this case amounted to number-application of mind. In Union of India v. Manoharlal Narang, 1987 2 SCC 241, the Supreme Courts interim order in pending appeal against High Courts quashing of a previous order of detention against the same detenu was number companysidered by the detaining authority while making the impugned subsequent order against him. By the interim order Supreme Court had permitted the detenu to be at large on companydition of his reporting to the police station daily. It was held that number-consideration of the interim order which companystituted a relevant and important material was fatal to the subsequent detention order on ground of number-application of mind. If the detaining authority companysidered that order one companyld number state with definiteness which way his subjective satisfaction would have reacted and it companyld have persuaded the detaining authority to desist from passing the order of detention. If in the instant case the bail order on companydition of the detenus reporting to the Customs authorities was number companysidered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was number relied on by the detaining authority. In Gurdip Singh v. Union of India, 1981 1 SCC 419, following Ichhu Devi Choraria v. Union of India, supra and Smt. Shalini Soni v. Union of India, 1981 1 SCR 962, it was reiterated that if the documents which formed the basis of the order of detention were number served on the detenu along with the grounds of detention, in the eye of law there would be numberservice of the grounds of detention and that circumstances would vitiate his detention and make it void ab initio. Mr. Kunhikannan relies on Haridas Amarchand Shah V.K.L. Verma, 1989 1 SCC 250, wherein the application for bail and the order dated September 15, 1987 passed by the Metropolitan Magistrate granting companyditional bail were placed before the detaining authority, but the application dated September 21, 1987 for variation of the companyditions and the order made by the Metropolitan Magistrate thereon were number placed before the detaining authority, this Court held that the application for variation of companyditions on bail and the order passed by the Metropolitan Magistrate varying the companyditions of bail were, in its opinion, number vital and material documents inasmuch as the granting of bail by the Magistrate enabled the detenu to companye out and carry on his business as before and variation of the companyditions were number companysidered vital for the satisfaction as to need for detention. That case is, therefore, distinguishable on facts. Considering the facts in the instant case, the bail application and the bail order were vital materials for companysideration. If those were number companysidered the satisfaction of the detaining authority itself would have been impaired, and if those had been companysidered, they would be documents relied on by the detaining authority though the specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents. supplied to the detenu with the grounds of detention and without them the grounds themselves companyld number be said to have been companyplete. We have, therefore, numberalternative but to hold that it amounted to denial of the detenus right to make an effective representation and that it resulted in violation of Article of the Constitution of India rendering the companytinued detention of the detenu illegal and entitling the detenu to be set at liberty in this case. Mr. Vaidyanathans last submission is that the order of declaration dated 23-8-1988 is bad on the ground that the show cause numberice dated 7-7-1988 and his reply thereto dated 26-7-1988, the bail application and the bail order dated 12-2-1988 as also the fact that the two passports of the detenu were seized were number placed before the declaring authority before he issued the declaration order under section 9 1 of the COFEPOSA Act. Mr. Mahajan clearly stated that all the materials that were placed before the detaining authority were also placed before the declaring authority, which meant that the show cause numberice, the reply thereto, and the seizure list of the passports were number placed before him. The declaration made under section 9 of the COFEPOSA Act by the Additional Secretary to the Government of India on 23-8-1988 reads as under Whereas Shri M. Ahamedkutty S o Shri Cheriya Saidukutty has been detained on 2-8-1988 in pursuance of order No. 35158/SSAI/88/Home dated 25-6-1988 of the Government of Kerala made under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from smuggling gold And whereas I, the undersigned, specially empowered in this behalf by the Central Government, have carefully companysidered the grounds of detention and the material served on the detenu Now, therefore, I. the undersigned, hereby declare that I am satisfied that the aforesaid Shri Ahamedkutty S O Shri Cheriya Saidukutty is likely to smuggle goods into and through Trivandrum Airport which is an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. This order ex facie says that the declaring authority had carefully companysidered the grounds of detention and the materials served on the detenu and on those materials the authority was satisfied that the detenu was likely to smuggle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to section 9 1 of the COFEPOSA Act. The question is whether there were adequate materials for the authority being satisfied that the detenu was likely to smuggle goods. The detenu having already been under detention and his detention companyfirmed by the Government under section 8, the Advisory Board having reported that there was sufficient cause for companytinued detention of the detenu, were there still enough materials to be satisfied that the detenu was likely to smuggle goods into Trivandrum vulnerable area? To decide this question, Mr. Vaidyanathan urged, it is necessary to remember that the passports of the detenu had been seized by the authorities. According to companynsel, if the detaining authority had applied his mind to this important fact, he companyld number have been satisfied that his detention was necessary to restrain the detenus activities of smuggling. This point we have touched upon earlier. In any event, Mr. Vaidyanathan submits, the declaring authority companyld number have been satisfied that the detenu was likely to smuggle goods into and through the Trivandrum airport which is the vulnerable area for, without a passport, he companyld number companye in or go out through the airport. In Smt. Rekhaben Virendra Kapadia v. State of Gujarat Ors., 1979 2 SCC 566, the declaring authority who passed an order under section 9 1 had also stated that the detenu engages and is likely to engage in transporting smuggled goods. To that extent it was observed by this Court that there was numbermaterial for companying to the companyclusion that the detenu was engaging himself in the unlawful activities as the detenu had been under detention. However, in an appropriate case if the declaring authority came to the companyclusion taking into account the past activities of the detenu that he was likely to companytinue to indulge in such activities in future there might be numberjustification for this Court to interfere. It was quite likely that persons who were systematically involved in smuggling activities companyld cause reasonable apprehension in the minds of the declaring authority that they were likely to companytinue their prejudicial activities. The emphasis in section 9 appears to be on the satisfaction that the detenu a smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling or b abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling or c engages or is likely to engage in transporting or companycealing or keeping smuggled goods in any area highly vulnerable to smuggling and in making a declaration to that effect within 5 weeks of the detention of the person. Explanation i defines area highly vulnerable to smuggling and Explanation 2 defines customs airport and the customs station. It is true that under section 10 of the COFEPOSA Act, where the provisions of section 9 apply, the maximum period of detention shall be a period of two years from the date of detention or the specified period whichever period expires later. However, numberhing companytained in section 9 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time. This may imply an obligation on the part of the detaining authority to place the facts and materials that occurred between the date of detention and the date of declaration, so as to justify prolongation of the period of detention. In Smt. Madhu Khanna v. Administrator, Union Territory Delhi, 1986 4 SCC 240, where detenus representation was rejected and declaration under section 9 1 was made on the same day but in different files, mere number-reference of the representation in the declaration was held number to have shown failure of the declaring authority to companysider the representation before making the declaration. However, as we have taken the view that number-furnishing of the companyies of the bail application and the bail order has resulted in violation of Article 22 5 of the Constitution, we do number express any opinion on this submission.

SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. In these appeals the appellants have challenged the companymon judgment and order dated 14th March, 2012 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Civil Misc. Appeal No. 2218 of 2011 etc. By the impugned judgment, the High Court modified the interim order dated 10th February, 2011 passed by the Additional District Judge No.3 Jaipur Metropolitan Magistrate, Jaipur hereinafter referred to as, the Lower Court in Civil Misc. Case No.36/2010, whereby the Lower Court partly allowed the application of the appellants-original plaintiffs seeking temporary injunction under Order XXXIX Rule 1,2 of CPC. The High Court set aside the temporary injunction granted in favour of plaintiffs appellants by the Lower Court and companyfirmed that part of the order requiring production of audited unaudited accounts of the companypanies partnership firms run by the parties. The present appeals arise from the following sequence of facts. Plaintiffs appellants-Babulal and others filed a suit for declaration, mandatory injunction, rendition of accounts and permanent injunction against the defendants number-applicants. The Lower Court numbericed that the properties which the plaintiffs presented in the Schedules Ka to Cha are basically immovable properties, companypanies and partnership firms regarding which both the parties have claimed ownership. Taking into companysideration that the dispute between the parties has arisen after the year 2007 and the cases are pending before the Company Law Board and if a restraint is number imposed upon the transfer of the aforesaid properties it will lead to multiplicity of litigation and the parties will entangle in litigation, the Lower Court observed that plaintiffs appellants have made out partially a prima facie case and held that the issue of balance of companyvenience and irreparable loss are in favour of the plaintiffs appellants. Resultantly, the application of the plaintiffsappellants for temporary injunction against the number-applicants and the companynter temporary injunction application filed on behalf of the numberapplicants were partly allowed and it was ordered that till the decision of the original suit- The applicants and number-applicants number1 to 31 and the number-applicants number36 to 43 shall number sell transfer the immovable properties as mentioned in Schedule Ka to Cha and number shall they create any substantial charge on the said properties. The Companies Partnership firms companytrolled and run by the parties of which the details have been given in Schedule Ka to Cha regarding them the audited accounts of income and expenditure half yearly annually whichever is got done in the numbermal sequence shall be presented before this Court. Apart from this the other prayers which have been made by both the parties are rejected. The number-applicants preferred different miscellaneous appeals against the aforesaid interim order of injunction before the High Court. The numberapplicants-respondents herein made the following submissions The suit of the plaintiffs in the present form is number maintainable in the eyes of law, inasmuch as it has been filed by Sh. Babulal along with Saurabh Agrotech Pvt. Ltd., which is a companypany incorporated under the Companies Act, two partnership firms registered under the Partnership Act jointly and the HUF of Babulal, seeking partition of the properties mentioned in the Schedules annexed to the plaint and that too against the set of companypanies, which have been shown as the assets of the HUF. Plaintiff-Babulal though seeking partition of the joint family properties has number impleaded his own sons and other companyarceners as parties to the suit and has number included the properties owned and managed by the plaintiffs in the schedules annexed to the plaint. Therefore, it was argued that the suit itself is bad for number-joinder of necessary parties and of causes of action and the suit is number tenable in the eye of law. The Lower Court failed to companysider the companytentions raised by the companycerned defendants and also the documents produced by them. On the other hand, learned companynsel for the plaintiffs-appellants made the following submissions The Lower Court has passed the impugned order which is just and proper after companysidering the prima facie case, irreparable injuries likely to be caused to the plaintiffs and the balance of companyvenience. On 20th December, 2007, a family settlement has taken place between Niranjan Lal Data Group which belong to the defendants and Babu Lal Data Group which belong to the plaintiffs and that the said settlement was signed by Mr. Vijay Data for Niranjan Lal Data Group and by Babu Lal Data for Babu Lal Data Group. The said settlement was also partly acted upon by the defendant-Niranjan Lal and other companyarceners and therefore, they cannot be permitted to back out from the said settlement. Learned companynsel also placed reliance upon decisions of this Court in Reliance Natural Resources Ltd. v. Reliance Industries Ltd. 2010 7 SCC 1 and in the case of Sangram Singh P. Gaekwad and others v. Shantadevi P. Gaekwad D Through LRs. Ors. 2005 11 SCC 314 and submitted that though a companypany incorporated under the Companies Act is a body companyporate, in certain situations, its companyporate veil can be lifted and that the suit for partition companyld be filed against companypanies also. It was further companytended on behalf of the plaintiffs-appellants that the family settlement need number be signed by companyarceners and that if a mere memorandum of family arrangement was prepared with regard to the arrangement which had already taken place such a document did number require registration. The family settlement made by the parties bona fide by making fair and equitable division of the properties amongst various members of the family must be respected. The High Court by impugned judgment and order dated 14th March, 2012 observed as follows 6It is also significant to numbere that the plaintiffs have impleaded the companypanies, partnership firms and proprietary companycerns and HUFs as the party defendants, and the said companypanies and firms have also been shown as the properties or the assets of the HUF in the schedule Gha annexed to the plaint. This companyrt fails to understand as to how the companypanies which are incorporated under the Companies Act having perpetual seal and separate entity companyld be the assets of the HUF as alleged by the plaintiffs and as to how the companypanies companyld be divided by metes and bounds by way of partition as prayed for in the suit. The plaintiffs in the suit have also prayed for mandatory injunction seeking direction against the defendantcompanypanies alongwith other defendants to act upon the family settlement, alleged to have taken place on 20.12.2007 between the Niranjan Lal Data Group and Babu Lal Data Group, and have also sought the direction against the said companypanies to execute the documents and handover the possession of the properties of the said companypanies and firms etc. This companyrt also fails to understand as to how the alleged family settlement between the NLD Group and BLD Group would be binding to the defendant companypanies and firms, apart from the issue as to whether the alleged document dated 20.12.2007 companyld be called a family settlement. Under the circumstances this companyrt finds much substance in the submission made by the learned companynsel for the appellants that the suit filed by the plaintiffs is number only bad for mis-joinder of parties and of causes of action, but also for number-joinder of necessary parties and that the suit in the present form would number be maintainable in the eye of law. So far as merits of the case are companycerned, according to the respondents-plaintiffs, all the properties mentioned in the Schedules Ka to Chha annexed to the plaint, were purchased from the nucleus of the joint family properties, and as per the family settlement dated 20.12.07, the said properties were required to be divided amongst the family members of the plaintiff No. 1 and the defendant Nos.1 to 9. In this regard, it is pertinent to numbere that the entire suit of the plaintiffs is based on the socalled family settlement which had allegedly taken place between the NLD group and BLD group on 20.12.07. From the bare perusal of the said document it transpires that it is the minutes of the meeting of Data Group Family dated 20.12.07, which was signed by Mr. Vijay Data for NLD Group and Mr. Babu Lal Data for BLD Group. Apart from the fact that there is number a whisper in the said document that the companypus of the companypanies mentioned in the said document was provided by the HUF or that the other properties mentioned in the said document were the HUF properties, the said document has also number been signed by the other companyarceners of the alleged HUF except by Mr. Vijay Data and Mr. Babu Lal Data. Such a document by numberstretch of imagination companyld be said to be a family settlement. However, even if it is believed to be a family settlement, and even if it is held that the same was number required to be signed by all the companyarceners, then also there is numberhing on the record to suggest that it was a memorandum prepared after the family arrangement which had already been made earlier, number required to be registered. . In this regard it is pertinent to numbere that though the companycerned defendants had raised companytentious issues as regards the maintainability of the suit, mis-joinder of parties and of causes of action, suppression of material facts by the plaintiffs etc., the lower companyrt has number companysidered the same and has held that the plaintiffs had established the prima facie case in their favour. In the opinion of this companyrt such a finding of the lower companyrt in the impugned order is number only erroneous but also perverse. When the suit on the face of it suffered from the mis-joinder of parties and of causes of action and was number prima facie tenable in the eye of law, the lower companyrt has companymitted serious error of law and facts in holding that the plaintiffs had established a prima facie case. If the plaintiffs were number entitled to the final reliefs in the suit, they companyld number be granted temporary injunction as prayed for during the pendency of the suit. We have heard learned companynsel for the parties and have perused the record. In the present case, the parties have raised similar pleas which were taken before the High Court. However, we are of the opinion that while dealing with a matter relating to vacation of order of temporary injunction, it was number open for the High Court to give a finding on the main issue relating to maintainability of the suit and the family settlement reached between the parties. In view of the finding aforesaid, we are inclined to interfere with the judgment and order dated 14th March, 2012 passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B.

Arising out of SLP Crl. No.705 of 2007 B. Sinha, J. Leave granted. An application for quashing the companyplaint being CC No.216 of 2006 filed in the Court of the Metropolitan Magistrate, Cyberabad at Malkagiri filed the petitioner under Section 482 of the Code of Criminal Procedure, has been dismissed by the High Court of Andhra Pradesh by reason of the impugned judgment. Basic fact of the matter is number in dispute. First respondent herein filed a companyplaint petition. The parties hereto entered into an agreement for sale in respect of a house admeasuring 350 square yards for a companysideration of Rs.23,80,000/-. A sum of Rs.5,00,000/- was paid by way of advance. A sale deed was executed on 30.9.2005 by the appellant herein on receipt of the balance sum of Rs.18,79,000/-. Indisputably on or about 29.9.2005, two rooms, allegedly, companystructed on the said lands were demolished. A suit was filed in relation thereto. Respondent No.1 was also defendant in the said suit. In the written statement, she stated Whereas it is the Plaintiffs who by demolishing existing structure when the defendant No.2 and her family members are away and even the electricity companynection meter was thrown away and in that regard this defendant No.2 herein has reported the matter to the companycerned police and this Plaintiffs herein have also filed a caveat application having got signed the same in the affidavit. And whereas before this Honble Court, the same Plaintiffs herein has put his thumb impression and the Plaintiff herein by taking advantage of ad interim orders, are trying to forcibly encroach upon the suit schedule property. Respondent herein, in the said suit, inter alia, companytended that the suit properties are different from the subject matter of the deed of sale. Although the aforementioned written statement was filed only in March, 2006, first respondent herein filed a companyplaint in the companyrt of Metropolitan Magistrate, Cyberabad at Neredmet alleging companymission of an offence by the appellant purported to be under Section 420 of the Indian Penal Code. Submission of Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the appellant, is that the allegations companytained in the companyplaint petition, even if given face value and taken to be companyrect in their entirety, do number disclose any offence. Learned companynsel would companytend that from a perusal of the written statement filed by the first respondent, it would appear that they she at all material times was aware of the purported demolition of the said rooms. Section 415 of the Indian Penal Code reads thus Section 415 Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to companysent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would number do or omit if he were number so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Explanation,A dishonest companycealment of facts is a deception within the meaning of this section. Section 415 of the Indian Penal Code is required to be read with the definition of the expression dishonestly as companytained in Section 24 thereof in terms whereof something must be done with an intention of causing wrongful gain to one person or wrongful loss to another. There exists a dispute as to whether the property whereupon the said two rooms were allegedly situated was the same property forming the subject matter of the deed of sale or number. A civil suit has already been filed in relation thereto. Respondent No.1 herein was aware of the fact that the said two rooms stood demolished. It is furthermore number in dispute that the demolition was number caused by the appellant herein. In her written statement filed in the said suit, the first respondent did number make any allegation against the appellant herein. The High Court, in its judgment, inter alia, opined that, prima facie, the appellant companycealed the fact of demolition of the premises from the first respondent before execution of the aforementioned deed of sale. The short question which arises for companysideration is as to whether a case of cheating within the meaning of Section 415 of the Indian Penal Code has been made out or number. Ingredients of cheating are deception of a person either by making a false or misleading representation or by other action or omission and fraudulent or dishonest inducement of that person to either deliver any property to any person or to companysent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would number do or omit if he were number so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. While executing the sale deed, the appellant herein did number make any false or misleading representation. There had also number been any dishonest act of inducement on his part to do or omit to do anything which he companyld number have done or omitted to have done if he were number so deceived. Admittedly, the matter is pending before a companypetent civil companyrt. A decision of a companypetent companyrt of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute. For the purpose of establishing the offence of cheating, the companyplainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to companysider the stand taken by a party in a pending civil litigation. We do number, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a companyplaint petition which is companytrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and companycealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the companyplainant first respondent would companye out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did number choose to do so. In this view of the matter, we are of the opinion that in the facts and circumstances obtaining herein, numbercase has been made out for proceeding with the criminal case. In G. Sagar Suri Anr. v. State of U.P. Ors. 2000 2 SCC 636, this Court opined Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is number to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are number a short cut of other remedies available in law. Before issuing process a criminal companyrt has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice. Therein, having regard to the fact that a criminal companyplaint under Section 138 of the Negotiable Instruments Act had already been pending, the criminal companyplaint under Section 406/420 found to be an abuse of the due process of law. In Anil Mahajan v. Bhor Industries Ltd. Anr. 2005 10 SCC 228, this Court held The substance of the companyplaint is to be seen. Mere use of the expression cheating in the companyplaint is of numberconsequence. Except mention of the words deceive and cheat in the companyplaint filed before the Magistrate and cheating in the companyplaint filed before the police, there is numberaverment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the companyplainant to pay. According to the companyplainant, a sum of Rs.3,05,39,086 out of the total amount of Rs.3,38,62,860 was paid leaving balance of Rs.33,23,774. We need number go into the question of the difference of the amounts mentioned in the companyplaint which is much more than what is mentioned in the numberice and also the defence of the accused and the stand taken in reply to numberice because the companyplainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for number going into these aspects is that a civil suit is pending inter se the parties for the amounts in question. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi 2003 5 SCC 257, this Court opined It is settled law, by a catena of decisions, that for establishing the offence of cheating, the companyplainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate companytained necessary companyditions which were required to be companyplied with after importation of the machine. Since the GCS companyld number companyply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The companyduct of the GCS clearly indicates that there was numberfraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption . As there was absence of dishonest and fraudulent intention, the question of companymitting offence under Section 420 of the Indian Penal Code does number arise. See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi 2005 3 SCC 670 and Indian Oil Corporation v. NEPC India Ltd. Ors. 2006 6 SCC 736.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 222 of 1973. Appeal by Special Leave from the Judgment and Order dated 27/28-2-73 of the Gujarat High Court in Criminal Appeal No. 731/71. Frank Anthony and K.L. Hathi for the Appellant. H. Dhebar, Miss Pratiloha Pandit and M.N. Shroff for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. To appreciate the question posed in the present appeal, it is necessary to set out in full the two charges framed against the two appellants. They were as follows- I, Chandrakant T. Mashla, Judicial Magistrate 2nd Court, Baroda hereby charge you Amritlal Ratilal Mehta Gajanan Bhikhabhai Gandhi both of Baroda as follows- That both of you Amritlal Ratilal Mehta and Gajanan Bhikhabhai Gandhi on or about 21-12-65, at Baroda cheated the Central Excise Department, Baroda in furtherance of companymon intention to cheat the Government of excise duty of Rs. 11450/- Eleven thousand four hundred and fifty by dishonestly making false declaration in gate passes numbers 105, 104, 103, all dated 21-12-65 which were prepared and written by accused No. 1 and signed by accused No. 2 stating therein Repaired Motor with our replacing statore or Rotor and thereby dishonestly induced the Central Excise Inspector to allow the clearance of Electric Motor Nos. 614193, 614194, 614196 respectively without payment of Central Excise duty on the dutiable parts namely Rotors Numbers 41-40-42 which were manufactured by M s. Joyto Ltd., Company Baroda and were replaced by the said companypany in the above Electric Motors and thereby got the clearance of the above Electric Motors without payment of Central Excise Duty, causing thereby wrongful loss of Rs 11450/- to the Central Excise department and thereby both of you companymitted offence punishable u s. 420 read with s. 34 of I.P.C. within companynizance of J.M.F.C., Baroda. And also that both of you at about the same time and place in furtherance of companymon intention in your capacity is employees of M s. Joyto Ltd. Baroda willfully and with an intention to defraud the Central Excise Department, Baroda made false entries in the gate passes as mentioned above belonging to your employer and thereby companymitted an offence punishable u s 477-A, r w. Section 34 I.P.C. and within companynizance M.F.C., Baroda. And thereby direct that you both be tried for the above offences by 2nd Court, J.M.F.C., Baroda. The learned Judicial First Class Magistrate, Baroda who tried the case acquitted both the accused of the charge under s. 420 read with s. 34 I.P.S. but companyvicted them under s. 477A read with s. 34 I.P.C. and sentenced them to pay fines of Rs. 100/- and Rs. 500/- respectively. The learned Magistrate was of the view that neither of the accused intended to cheat and make wrongful gain but that they made a false entry in the gate passes with a view to help their employer. The two accused preferred an appeal to the Extra Additional Sessions Judge, Baroda. The learned Sessions Judge acquitted them of the charges under s. 477-A read with s. 34 I.P.C. also. The learned Sessions Judge found that the gate passes were prepared by the accused under a mistake and that the worst that companyld be said against the two accused was that they acted inadvertently or negligently. The learned Sessions Judge took the view that the expression intend to defraud denoted some element of dishonesty and that the appellants acted neither willfully number with the intent to defraud the Government. The State of Gujarat filed two appeals, the first against the order of acquittal recorded by the learned Judicial First Class Magistrate, Baroda on the charge under s. 420 read with s. 34 I.P.C., and the second against the order of acquittal recorded by the learned Extra Additional Sessions Judge, Baroda on the charge under s. 477-A read with s. 34 I.P.C. The appeal against the order of acquittal on the charge under s. 477-A read with s. 34 I.P.C. was dismissed summarily on 13-3-72 by M. Sheth and A.A. Dave, JJ. The appeal against the order of acquittal on the charge under s. 420 read with s. 34 P.C. was allowed on 27/28-2-73 by J.M. Sheth, J. and the two accused were sentenced to pay fines of Rs. 300/- and 500/- respectively. It is against this judgment of J.M. Sheth, J. that the present appeal has been preferred by special leave of this Court. The principal submission of Shri Frank Anthony, learned companynsel for the appellants was that in view of the findings of fact recorded by the Sessions Judge on the charge under s. 477-A read with s.34, which had become final as a result of the dismissal of the appeal by Sheth and Dave, JJ., the charge under s. 420 read with s. 34 I.P.C. must automatically fail. The learned companynsel submitted that the judgment of the High Court companyvicting the appellants under s. 420 read with s. 34 I.P.C. was patently wrong. We are inclined to agree with the submission of Shri Frank Anthony. The learned Judge of the High Court was of the view that the acquittal on the charge under s. 477-A was number a bar to a companyviction under s. 420 as the ingredients of the two offences were different. According to the learned Judge, the gist of the offence under s. 477-A was that the false entries must have been made willfully and with intent to defraud whereas the essence of the offence under s. 420 was that the accused should have acted dishonestly. We are afraid that the learned Judge entirely misdirected himself. The question here is number whether the ingredients of the two offences are the same or substantially the same. That question would be relevant if the plea was one autrefois acquit or autrefois companyvict. The question is number even one of issue estoppel properly so called as there were numberseparate trials. The question really is about the binding force and the companyclusive nature, at later stages of a case, of a finding of fact finally determined at an earlier stage of the case. The question is number res integra. In Bhagat Ram State of Rajasthan 1 and State of Rajasthan v. Tarachand Jain 1 it has been held by this Court, an earlier finding which had obtained finality is binding in the subsequent proceedings in the case. The question about the binding force of a finding at an earlier stage would depend on the question as to what the allegations were, what facts were required to be proved and what findings were arrived at. The question thus is number whether the ingredients of the two offences are the same but whether the facts alleged and required to be proved in the particular case to establish the offences are basically the same. The charges set out by us at the outset show that the essential allegation which was required to be proved in respect of the two charges was whether the gate passes were made dishonestly so far as the charge under s. 420 was companycerned and with intent to defraud so far as the charge under 477-A was companycerned. A finding that the gate passes were made inadvertently and negligently was destructive of both the charges. If for the purpose of the offence under s. 477-A, the Court found that the entries made by the accused in the gate passes were made inadvertently and negligently but number willfully or with a view to defraud and that finding became final, it would number be open to the Court, later to find, on the charge under s. 420, that the entries on the gate passes were made number inadvertently and negligently, but dishonestly. On the facts of the present case, we hold that the finding of fact to the effect that the gate passes were made inadvertently and negligently but number willfully or with intent to defraud which led to the acquittal of the accused on the charge under s. 477-A must, that acquittal having become final, operate for the benefits of the accused and lead to their acquittal on the charge under s. 420 also. The finding that the gate passes were made inadvertently and negligently, as we said, was destructive of the charges under both s. 420 and s. 477-A. The appeal is therefore allowed. The appellants are acquitted. Their bail bonds will be cancelled. Fines if any will be refunded.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 128 of 1972. Appeal by Special Leave from the Judgment Order dated the 31st May, 1971 of the Calcutta High Court in Civil Rule No. 2519 of 1970. Sen, Som Nath Chatterjee, B.P. Maheshwari and Suresh Sethi, for the Appellant. Chatterjee and Sukumar Ghose, for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. In this appeal by special leave from the judgment of a learned single Judge of the High Court of Calcutta, two questions are raised for our companysideration on behalf of the appellants who have obtained against the respondent a decree for eviction 1 whether the decree of the trial companyrt has merged in the decree of the High Court and 2 whether by reason of section 17 D of the, West Bengal Premises Tenancy Act, 1956 the decree for eviction is incapable of execution. Long, long back on May 19, 1953 Messrs. Hind State Private Ltd., the predecessors-in-title of the appellants, filed against the respondent a suit for eviction on the ground of number-payment of rent. On November 24, 1958 the learned Second Munsif, Alipore, passed a decree for possession in favour of the plaintiffs holding that by reason of defaults in the payment of rent, the respondent was number entitled to the protection of the West Bengal Premises Rent Control Temporary Provisions Act, 1950. That decree was companyfirmed in appeal by the learned Subordinate Judge, 4th Court, Alipore, on April 12, 1967. During the pendency of the appeal, the appellants had purchased the right, title and interest of the plantiffs in the suit premises and they had also obtained an assignment of the decretal rights in their favour. They were therefore brought on the record of the appeal in place of the original plantiffs. The respondent filed Second Appeal No. 1255 of 1967 against the decree of the 1st appellate companyrt and that appeal, after a companytested hearing, was dismissed by a Division Bench of the High Court of Calcutta on January 8, 1969. While dismissing the appeal, the High Court granted to the respondent time to vacate the suit premises till the end of January, 1970 on the respondent giving a written undertaking to the companyrt that he will hand over quiet and peaceful possession of the premises to the appellants on the expiry of the aforesaid period. The West Bengal Premises Rent Control Temporary Provisions Act, 1950 was repealed by section 40 of the West Bengal. Premises Tenancy Act, XII of 1956. During the Proclamation, of emergency issued by the President of India on February 20, 1968, Act XII of 1956 was amended by the West Bengal Premises Tenancy Amendment Act, Presidents Act 4 of 1968, which was given retrospective effect from August 26, 1967. After the cessation of the emergency, the West Bengal legislature passed the West Bengal Premises Tenancy Amendment Act, 1969 with a view to re-enacting with modification Presidents Act 4 of 1968. In between the decree for possession passed by the High Court in the appellants favour on January 8, 1969 and the expiry of the period allowed to the respondent to vacate the premises, several amendments were made to the West Bengal Premises Tenancy Act, XII of 1956, The Act of 1956 by the West Bengal Premises Tenancy Second Amendment Act, 1969 The Act of 1969 which came into force on November 14, 1969. We are companycerned in this appeal with the provisions of section 17 D which was introduced in the Act of 1956 by the Act of 1969. That section, in so far as material, reads thus 17 D. Power of Court to set aside, decrees passed on account of default in the payment of rent. Where before the companymencement of the West Bengal Premises Tenancy Amendment Act, 1968, a decree for the recovery of possession of any premises was passed- a b in a suit under the West Bengal Premises Rent Control Temporary Provisions Act, 1950, by reason only of clause i of the proviso to subsection., 1 of section 12 of that Act, but the possession of such premises had number been recovered from the tenant by the execution of the decree, the tenant may within a period of sixty days from the date of companymencement of the West Bengal Premises Tenancy Second Amendment Act, 1969, make an application to the Court which passed the decree to set aside the decree. Explanation-Where the decree was passed in the exercise of appellate jurisdiction, an application under this sub-section shall be made to the Court of first instance. Where-an application has been made under sub-section 1 for setting aside a decree, all proceedings in execution of the decree shall remain stayed until the application is disposed of. Sub-section 3 of section 17 D provides that on receipt of an application under sub-section 1 the companyrt shall cause a numberice thereof Lo be served on the landlord and after hearing such evidence as the parties may adduce, determine the questions referred to in clauses a and b of that sub-section. The companyrt is then required to give to the tenant further time number exceeding sixty days to deposit the amount found due under clauses a and b of sub-section 3 together with such companyts as the companyrt may allow. If the tenant deposits the amount within the time granted under subsection 3 , the companyrt under subsection 4 has to allow the application of the tenant, set aside the decree for the recovery of possession and dismiss the suit. On January 12, 1970 which was a few days before he had under taken to vacate the Premises, the respondent made an application under section 17 D Asking that the decree for possession passed Against him be set aside. By a judgment dated July 15, 1970 the learned Munsif, Second Court, Alipore, dismissed that application on the ground that the decree for possession passed by the trial companyrt on November 24, 1958, had merged in the decree passed by the High Court on January 8, 1969, that in truth and in substance the operative decree was the one passed by the High Court and as that decree was, passed after August 26, 1967, being the date of the companymencement of the West Bengal Premises Tenancy Amendment Act, 1968, the application filed by the respondent under section 17 D of the act of 1956 was number maintainable. The respondent filed a revision application in the High Court of Calcutta against the judgment of the learned Munsif. By a judgment dated May 31, 1971 a learned single Judge of the High Court allowed the revision application, granted the application filed by the respondent under section 17 D and directed the dismissal of the suit. The learned Judge has taken the view that in case where, an appellate, companyrt dismisses the appeal, the principle of merger of the decree of the lower companyrt with that of the appellate companyrt has numberapplication and therefore the effective decree in the case was the one passed by the trial companyrt on November, 24, 1958 which was before the companymencement of the President Act 4 of 1968. This Court has granted to the appellants special leave to appeal, from the judgment of the High Court. it is number in dispute that the decree dated November 24, 1958 for possession of the suit premises was passed by the trial companyrt in a suit filed by the appellants predecessors-ininterest under the West Bengal Premises Rent Control Temporary Provisions Act, 1950, by reason only of clause 1 of the proviso to sub-section 1 of section 12 of that Act, that is to say, on the ground that the respondent had defaulted in the payment of rent. Clause b of section 17 D 1 is therefore companyplied with. The question which arises for companysideration is whether the decree for the recovery of possession can be said to have been passed against the respondent before the companymencement of the West Bengal Premises Tenancy Amendment Act, 1968, that is, before August 26, 1967. If it was passed before that date, the respondent would be entitled to claim the benefit of section 17 D, in which event the decree passed in the suit has to be set aside and there would be then numberoutstanding decree to execute. It is indisputable that a decree for possession was in fact passed in favour of the appellants predecessors-in-interest by the trial companyrt on November 24, 1958 which was before the companymencement of the Act of 1968. But that decree was taken in appeal first to the companyrt ,of the Subordinate Judge which companyfirmed the decree and taken to the high Court which, after a companytested hearing, dismissed the defendants appeal and companyfirmed the decree passed by the Subordinate Judge. The decree of the High Court is dated January 5, 1969 and was passed after, number before, the companymencement of the Act of 1968. The-question to be companysidered is whether the decree passed by the trial companyrt can be deemed to have merged in the decree passed by the High Court. Learned companynsel for both the sides have cited before us a large. number of decisions bearing on the principle of merger but a few preliminary observations will facilitate a better understanding of those decisions. The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time. more than one operative order governing the same subject-matter. Therefore the judgment of an inferior companyrt, if subjected to an examination by the superior companyrt, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior companyrt. In other words, the judgment of the inferior companyrt loses its identity by its merger with the judgment of the superior companyrt. Stated in this form the principle may appear to be unexceptionable but the problem has many facets. What, if the higher companyrt dismisses the proceeding before it summarily without a speaking order? Does the judgment of the lower companyrt still merge in the unspeaking order of the higher companyrt? What, if the powers of the higher companyrt are invoked in the exercise of its revisional and number appellate jurisdiction? Does a judgment or an order passed in the exercise of a severally restricted jurisdiction like that under section 115 of the Code of Civil 39 9 procedure wipe out of existence a decree or order passed in the exercise of a wider jurisdiction as may be exercised by a companyrt possessed of a suit ? Does it make any difference to the application of the doctrine of merger that the nigher companyrt has number modified or reversed the judgment of the lower companyrt but has merely affirmed it? These nuances had once raised issues on which companyflicting views were expressed by the companyrts. Over the years, the area of companyflict has companysiderably narrowed down and most of the problems touched by us have been. resolved by this Court. It is only proper that we keep ourselves within the bounds of the issue arising in the case. We are number companycerned to determine whether a decree passed in a suit can merge with an order passed in the exercise of revisional jurisdiction because the decree of the trial companyrt in the instant case was challenged first by an appeal filed in the District Court and than is a Second Appeal filed in the High Court. We are also number companycerned to determine whether the decree passed by a trial companyrt can merge in an unspeaking order passed by the higher companyrt while summarily dismissing the proceeding because the High Court has given a companysidered judgment after a companytested hearing. The Principle, therefore, that there is numberdecree as such of the appellate companyrt if it dismisses the appeal for default of appearance or for want of prosecution or on the ground that the appeal has abated or is withdrawn or that the appellant has failed to furnish security for companyts as provided in Order 41, Rule 10 of the Code of Civil Procedure, can have numberapplication tothe instant case. Nor indeed are we companycerned with that class of cases in which the suit companyers a horizon wider than the appeal, which happens when only a part of the decree passed in the suit is carried in appeal to the higher companyrt. Here, the decree in its entirety was challenged before the appellate companyrts. Section 17 D of the Act of 1956 companyfers power on the companyrt to set aside decrees passed on account of the tenants default in the payment of rent. This power was companyferred evidently in order to give further relief to defaulting tenants, as stated in the Statement of Objects and Reasons of the Bill Calcutta Gazette Extra Ordinary, dated August 2, 1969 . An effective and meaningful exercise of the power to set aside the decree for possession postulates a power to set aside an operative decree for, to set aside the decree of the companyrt of first instance and to allow the decrees ofthe appellate companyrts to remain outstanding would be but an empty exercise of the beneficent power given by the section. Therefore, the power to set aside the decree for possession must be companystrued to mean a power to set aside the decree which can be put into execution. The decree which affects the rights of the defendant is the decree which is capable of execution for it is in that decree that the rights and obligations of the parties are crystallised. Section 17 D in terms speaks of the power of the companyrt to set aside a decree for the recovery of possession of any premises if, the possession of such premises had number been recovered from the tenant by the execution of the decree. The decree to be set aside is thus that decree which is capable of execution and in execution of which the landlord has number yet obtained possession of the premises. What is important for the purposes of section 17D is to find which is the decree capable of execution. The section enables the judgment-debtor to make an application to the Court which passed the decree to set aside the decree, provided that where the decree is passed in the exercise of appellate jurisdiction, an application for setting aside the decree may be made to the Court of first instance. By sub-section 2 of section 17 D, if an application is made for setting aside a decree, all proceedings in execution of the decree shall remain stayed until the application is disposed of. This provision emphasis what is clear from the other provisions of the section that the companycern of the law is to arm the companyrt with the power to set aside the operative decree by executing which alone the judgment-creditor companyld obtain teal and effective relief. In cases where the decree of the trial companyrt is carried in appeal and the appellate companyrt disposes of the appeal after a companytested hearing, the decree to be executed is the decree of the appellate companyrt and number of the trial companyrt. In Jowad Hussain vs. Gendan Singh Ors., 1 the, Privy Council while holding that the limitation of three years within which an application for a, final decree must be made runs fromthe date of the decree of the appellate companyrt, quoted with approvalthe statement of law companytained in the judgment of a learned judge of the Allahabad High Court to the following effect When an appealhas been preferred, it is the decree of the Appellate Court which is the final decree in the cause. 2 The Privy Council also adoptedthe statement companytained in a judgment of Tudball J. to this effect When the Munsif passed the decree it was open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred,, the final decree is the decree of the Appellate Court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties. Thus, when the decree of the companyrt of first instance is companyfirmed by the High Court and the latter decree is companyfirmed by the Privy Council the decree capable of execution is the decree of the Privy Council. 3 In that case the decree passed by a District Judge in 1887 awarded future mesne profit to the plaintiff. That decree was reversed by the High Court but was companyfirmed by the Privy Council on May 11, 1895. When the matter came back in execution proceedings the Privy Council held that the decree which the companyrts had to execute was the one Passed by it in 1895 and since by that decree the District Judges decreewas companyfirmed, the decree of 1895 clearly carried the mesne profits up to its own date. An application of this very principle yields the result that if the companyrt of appeal companyfirms, varies or reverses the decree of the lower companyrt, the decree of the appellate companyrt is the only decree that can be amended 4 , or that the limitation for executing a decree runs from 1 53 I.A. 197. Per Banerji J. in Gajandhar Singh v. Kishan Jiwan Lal L.R. 39 All. 641 Bhup Inder v. Bijai, 27 I.A. 209. 4 Brij Narain v. Tejpal 37 I.A. 70, the date of the decree capable of execution and that is the decree of the appellate companyrt which supersedes that of the companyrt of first instance 1 or that if mesne profits are ordered from the date of suit until the expiry of three years after the date of the decree, the decree to be companysidered is the decree capable or execution so that if the decree of the trial companyrt is companyfirmed. in appeal, three years will begin to run from the date of the appellate decree. 2 The decree, therefore, which section 17 D empowers the companyrt to set aside is the decree which is capable of execution which, in this case, is the decree passed by the High Court on January 8, 1969. The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate companyrt is treat in such cases the decree of the trial companyrt is merged in the decree of the appellate companyrt. In companyrse of time, this companycept which was originally restricted to appellate decrees on the ground that an appeal is a, companytinuation of the suit, came to be gradually extended to other proceedings .like. Revisionsand even to proceedings before quasi judicial and executive authorities. it will number be appropriate to refer to the decisions bearing on the principle of merger. In Commissioner of Income-tax Bombay vs. M s. Amritlal Bhogilal Co., 3 the question which arose for decision was whether the order passed by the Income-tax Officer allowing the registration of a firm merged in the order passed by the Appellate Assistant Commissioner in the appeals filed by the firm against the order of assessment. If it did, the Commissioner of Income-taX companyld number in the exercise of his revisional powers under section 33B 1 set, aside the order of registration passed by the Income-tax Officer. This Court held on the merits, of the matter that though the appellate order of the Appellate Assistant Commissioner was the only order which was valid and enforceable in law, what merged in the appellate order was the Income-tax Officers order under appeal and number his order of registration which was number and companyld number have become the subject-matter of an appeal before. the appellate authority. The position in regard to the doctrine of merger was stated thus by Gajendragadkar J. who spoke for the Court There can be numberdoubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced.- In law the position would be just the same even if the appellate decision merely companyfirms Jowad Hussain vs. Gendan Singh, 53 I.A. 197. Bhup Inder vs. Bijai, 27 I.A. 209. 3 1959 S.C.R. 713. the decision of the tribunal. As a result of the companyfirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. Collector of Customs, Calcutta vs. East India Commercial Co. Ltd., 1 is a typical example of that class of cases in which prior to the amendment of Article 226 of the Constitution by the insertion of clause IA, the High Courts were faced with the question whether a writ companyld issue against an authority whose seat was situated beyond the territorial jurisdiction of the High Court. The respondent led a writ petition in the Calcutta High Court against the decision of the Central Board of Revenue which had dismissed his appeal. A Full Bench of the High Court held that though it had numberjurisdiction to issue a writ against the Central Board of Revenue which was permanently located outside its territorial jurisdiction, the Board having merely dismissed the respondents appeal against the order passed by the Collector of Customs, the real effective order was that of the Collector whose seat was located within the jurisdiction of the High Court and therefore a writ companyld issue as against him. After referring to the decisions of the High Courts of Allahabad, Nagpur, PEPSU and Rajasthan which had taken the view that the order of the original authority merges in the appellate order even when the appellate authority dismisses the appeal without any modification of the order appealed against, Wanchoo J. speaking for the Constitutional Bench observed thus The question therefore turns on whether the order of the original authority becomes. merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, i it may reverse the order under appeal, ii it may modify that order, and iii it may merely dismiss the appeal and thus companyfirm the order without any modification. It is number disputed that in the first two cases where the order of the original authority is either reversed or modified-it is the order of the appellate authority which is the operative order and if the High Court has numberjurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it hasreversed the original order or modified it or companyfirmed it 1 1963 2 S.C.R. 563. It is this principle, viz., that the appellate order is the operative order after, the appeal is disposed of, which his in our opinion the basis of the rule that the decree of the lower companyrt merges in the decree of the appellate companyrt, and on the same principle it would number be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere companyfirmation. The decision of the High Court was accordingly set aside by this Court. In Madan Gopal Rungla vs. Secretary to the Government of Orissa 1 which also involved a similar question relating to the territorial jurisdiction of the High Court, the appellant, Madan Gopal Rungta, filed an application for review to the Central Government against the order passed by the Government of Orissa rejecting his application for grant of a mineral lease. The judgment of this Court affirming the view of the High Court that it had numberjurisdiction to issue a writ against the Central Government undoubtedly based on the terms of Rule 60 of the Mineral Concession Rules, 1949 under which whenever a matter is brought to the Central Government it is its order which is effective and final but it was observed that where there is a review petition and the Central Government passes an order on such petition one way or the other it is the Central Governments order that prevails and the State Governments order must in those circumstances merge in the order of the Central Government p. 914 . The principle that the decree of the trial companyrt merges in the decree of the appellate companyrt was held to be applicable in U.J.S. Chopra v. State of Bombay 2 to orders passed in criminal proceedings. In that case the High Court dismissed summarily an, appeal filed by an accused against his companyviction and sentence. Thereafter, the State of Bombay filed an application in the High Court for enhancement of the sentence. While holding that the summary dismissal of the appeal preferred by the accused did number preclude him from taking advantage of the provisions of section 439 6 of the Code of Criminal Procedure and showing cause against his companyviction when he was subsequently called upon to show cause why the sentence imposed on him should number be enhanced, Bhagwati and Imam JJ. observed A Judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a numberice and a full hearing in the presence of both the parties would replace the judgment of the lower Court, thus companystituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. pp. 133-134 . Das J. agreed with the companyclusion of the majority as regards the right of the accused to challenge the companyviction under section 439 6 but he went a step further and said that there is a merger or replacement of the judgment of the lower companyrt whenever the High Court disposed of the appeal or revision 1 1962 Supp. 3 S.C.R. 906. 2 1955 2 S.C.R. 94. and that it makes numberdifference whether the dismissal is summary or otherwise. p. 118 . An interesting question arose in Shanker Ramchandra Abhyankar v. Krishnaji Dattatryaya Bapat 1 where after a single Judge had dismissed a Civil Revision Application filed by the tenant under section 115 of the Code of Civil Procedure, against a decree passed by the District Court, a Division Bench of the Bombay High Court entertained the tenants writ petition under Articles 226 and 227 of the Constitution against the same decree and allowed it. The Bombay High Court had followed its earlier judgment in Sipahimalanis case 2 which had taken the view that an order passed by the lower companyrt does number merge in the order passed by the revisional companyrt because whereas a right of appeal is a vested right and an appeal is a companytinuation or rehearing of the suit, a revision is number companytinuation or rehearing of the suit and it is number obligatory upon the revisional companyrt to interfere with the order even if it is improper or illegal. This Court disapproved of that view and held following a judgment of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey 3 that the revisional jurisdiction is a part and parcel of the appellate jurisdiction of the High Court and therefore the principle of merger would apply to orders passed in the exercise of revisional jurisdiction also. In Somnath Sahu v. The State of Orissa and others 4 the principle of merger was extended to an executive order dismissing a Government servant. The appellant in that case was dismissed by an order passed by respondent No. 4, the Indian Aluminum Company Ltd., Calcutta. The appeal filed by the appellant to the State Government was dismissed on January 2, 1962. The appellant thereafter moved the Orissa High Court under Article 226 of the Constitution asking that the orders passed-by the, State Government and respondent No. 4 be quashed, on the ground that numbernotice was given to him for misconduct and numberinquiry was held by respondent No. 4 into the alleged misconduct before passing the order of dismissal. This Court assumed in favour of the appellant that the order passed by respondent No. 4 was illegal but it held that it merged in the appellate order of the State Government dated January 2, 1962 and unless the order of the State Government was shown to be defective, the appellant would number be entitled to any relief. Speaking on behalf of the Court Ramaswami J, observed There can numberdoubt that if an appeal is provided by a statutory rule against an order passed by a tribunal the decision of the appellate authority is the operative decision in law if, the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely companyfirms the decision of the Tribunal. As a result of the companyfirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. The learned Judge of the High, Court has referred to some of these decisions in his judgment but he took the view -I am of opinion that 1 1970 1 S.C.R. 322. 2 58 B.L.R. 344. 3 59 I.A. 283, 297. 4 1969 3 S.C.C. 384. in cases where the appellate companyrt merely dismisses the appeal, the principle of merger have numberapplication in cases of execution of the original decree except as to limitation and will number affect an executable decree passed by an inferior companyrt, in so far as its execution is companycerned. The position would be otherwise if the decree is modified or varied by such appellate authority as, in such event, the original decree, will be in executable., This companyclusion is clearly opposed the view taken by this Court in the decisions referred to above and the learned Judge was in error in making a distinction between an appellate judgment whereby an appeal is dismissed and an appellate judgment modifying or reversing the decree of the lower companyrt. This distinction is unsound and is based on numberdiscernible principle. Two more judgments of this Court must be numbericed because the learned Judge has derived sustenance to his view from those judgments. Learned companynsel for the respondent has also relied on them in support of his submission that in this case there can be numbermerger of the trial companyrts decree in that of the appellate companyrt. The first of these cases is The State of Uttar Pradesh v. Mohammad Nooh. 1 On April 20, 1948 the District Superintendent of Police passed an order of dismissal against the respondent Mohammad Nooh who was a head companystable. The respondent filed an appeal to the Deputy Inspector-General of Police which was dismissed on May 7. 1949. He then filed a revision application to the Inspector-General of Police which was also dismissed on April 22, 1950. The respondent then filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution praying that the order of dismissal be set aside. The High Court granted the writ on the ground that the violation of the rules of natural justice and fair play rendered the order of dismissal illegal. In an appeal by the State of U. P., this Court held by a majority that Article 226 of the Constitution is number retrospective and the High Court companyld number exercise its powers under that Article 226 to quash the order of dismissal passed before the companymencement of the Constitution. It was companytended before this Court on behalf of the respondent Mohammad Nooh that the order of dismissal dated April 20, 1948 had merged in the order passed on appeal on June 7, 1949, that both these orders merged in the order passed by the Inspector-General of Police on April 22, 1950 and since the order last mentioned was passed after the Constitution had companye into force, the High Court had jurisdiction to issue, the writ under Article 226. This companytention was negatived by the companyrt on two grounds Firstly, that though departmental authorities holding an inquiry into charges made against an employee have the trappings of companyrts of law, they cannot becompanypared with regular companyrts manned by persons trained in law and therefore the order of dismissal, the order passed in appeal and the order passed in revision can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure secondly, that while it is true that a decree of a companyrt of first instance may be said to merge in the decree passed on appeal therefrom or even in the 1 1958 S.C.R. 595. order passed in revision, it does so only for certain purposes, namely. for the purposes of companyputing the period of limitation for execution of the decree as in Batuk Nath Mune Dei, 1 or for companyputing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh. 2 The observations last quoted from the Judgment of Das C. J. do lend support to the companytention of the respondent that the principle of merger has, at best, a limited application but we are of the view that the observations are evidently made in the companytext of the peculiar facts of the case and their application ought number to be extended beyond those facts. After making the observations extracted above., Das C.J. proceeded to say The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view of the matter the original order of dismissal passed on April 20, 1948, was number suspended by the presentation of appeal by the respondent number was its operation interrupted when the Deputy Inspector-General of Police simply dismissed the appeal from that order or the Inspector-General simply dismissed the application for revision. The original order of dismissal, if there was numberinherent infirmities in it, was operative on its own strength and it did number gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent companyferment of jurisdiction and powers on the High Court can have numberretrospective operation on such rights and liabilities. This passage leaves numberdoubt that the judgment is based on the premise that the original order of dismissal was operative on its own strength and that since that order was passed prior to the Constitution, the High Court had numberjurisdiction to set it aside under Article 226. In Madan Gopal Vs. Secretary to the Government of Orissa 3 a Constitution Bench of this Court held that the facts in Mohammad Noohs case were of a special kind and therefore the reasoning in that case would number apply to the facts of the case before the Constitution Bench to which we have already made a reference. In Collector of Customs, Calcutta vs. East India Commercial Co. Ltd., 4 the same Constitution Bench reiterated that Mohammad Noohs case was a special case which stands on its own facts. As observed in that decision, even if the principle of merger were applicable the fact would still have remained that the dismissal of Mohammad Nooh was prior to the Constitution and therefore he was number entitled to take advantage of the provisions of the Constitution. The other decision on which the respondent relies is State of Madras vs. Madurai Mills Co. Ltd. 5 It was held in that case that the order of assessment dated November 23, 1952, had number merged in 1 1914 L.R. 41 I.A. 104. 2 1926 L.R. 53 I.A. 197. 3 1962 Supp. 3 S.C.R. 906. 4 1963 2 S.C.R. 563. 5 1967 1 S.C.R. 732. the revisional order dated August 21, 1954 passed by the Deputy Commissioner of Commercial Taxes because the question of exemption on the value of yarn purchased from outside the State of Madras was number the subject-matter of revision. The attention of the Court was drawn to Anzritlal Bhogilals case 1 , to which we nave already referred, but Ramaswami J. who spoke for the Court said But the doctrine of merger is number a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the interior Tribunal and the other by a superior Tribunal, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision companytemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions companyferring the appellate or revisional jurisdiction. These observations cannot justify the view that in the instant case there can be numbermerger of the decree passed by the trial companyrt in the decree of the High Court. The companyrt, in fact, relied on Amritlal Bhogilals case while pointing out that if the subjectmatter of the two proceedings is number identical, there can be numbermerger. Just as in Amritlal Bhogilals case the question of registration of the assessee firm was number before the appellate authority and therefore there companyld be numbermerger of the order of the Income-tax Officer in the appellate order, so in the case of Madurai Mills there companyld be numbermerger of the assessment order in the revisional order as the question regarding exclusion of the value of yarn purchasedfrom outside the State was number the subject-matter of revision before the Deputy Commissioner of Commercial Taxes. In the instant case the subject-matter of the suit and the subject-matter of the appeal were identical. The entire decree of the trial companyrt was taken in appeal to the first appellate companyrt and then to the High Court. The appellate order also shows that the appeal after being heard on merits, was dismissed with the modification that the respondent should vacate the premises by the end of January, 1970. The decree of the High Court dated January 8, 1969, reads thus It is ordered and decreed that the decree of the companyrt of appeal below be and the same is hereby affirmed and this appeal dismissed subject to this that the defendant appellant, having duly filed the stipulated undertaking, through his, learned Advocate, is allowed time till the end of January, 1970, for vacating the disputed premises and delivering up quiet and peaceable possession thereof to the decree-holder respondent on companydition that the said defendant appellant deposits in the trial companyrt, to the credit of the decree-holder respondent, within two months from this date, the outstanding arrears, if any, on account of rents or mesne profits, as the case may be, and also goes on depositing, in the same companyrt to the same credit, month by month, regularly, according to the English calendar., within the 15th of the next succeeding month according to the same calendar, a sum of 1 1959 S.C.R. 713. 8-177 Sup CI/75 Rs. 175/- Rupees one hundred and seventy five per month, on account of current rents or mesne profits. And it is further ordered that in the event of the said defendants failure to make any of, the above deposits, this, decree shall become executable at once. We, are accordingly of the opinion that the decree of the trial companyrt dated November 24, 1958 merged in the decree of the High Court dated January 8, 1969. Since the decree. of the High Court was passed after the companymencement of the West Bengal Premises Tenancy Amendment Act 1968, that is to say after August 26, 1967, section 17D of the Act of 1956 can have number application and therefore the decree of the High Court which is the only decree to be executed cannot be set aside under that section. We therefore allow the appeal, set aside the judgment of the High Court dated May 31, 1971 and restore that of the Munsif, Second Court, Alipore dated July 15, 1970.

THE 1ST DAY OF MAY, 1996 Present Honble Mr.Justice K.Ramaswamy Honble Mrs. Justice Sujata V.Manohar Mrs. Chandan Ramamurthi, Adv. for the appellant Datta, Sr.Adv. and S.B.Upadhyay, Adv. with him for the Respondents O R D E R The following Order of the Court was delivered This appeal by special leave arises against the order of the High Court of Himachal Pradesh made on 9.12.1994 in W.P.No.435/92. The appellant was initially appointed as a Store Munshi on 4.10.71 in the work-charged establishment. Later , he had two promotions, last of them being Store Keeper in the regular cadre on December 31, 1980 in the payscale of Rs. 260-430/- w.e.f. 1.1.1981. He was later promoted on 1.1.1986 in the grade of Rs. 330-560/-. Subsequently, by virtue of negotiation with the Union, the pay-scale and the promotional avenues of the work charged employees, who companyld number get promotion, were rationalised and by modified scheme dated September 5, 1988, the respondents had adopted rationalisation scheme and the scales of pay. Para b of the scheme envisages that although appointment to the regular cadre will be effective from the date of such appointment, service rendered from the date of such appointment, service rendered in work charged posts in the same post and scale of pay will companynt towards inter-se seniority in the regular cadre for the purpose of promotion to next higher scale of pay subject to line of promotion being available. It is number in dispute that the appellant earlier was promoted on selection and became a regular employee. Though the work charged employees who companyld number become the regular employees have the benefit of rationalisation scheme referred to hereinbefore, since the appellant was in a lower scale of pay in the work-charged establishment than was mentioned in the rationalisation scheme, he cannot claim the higher scale of pay or promotional post on par with his erstwhile juniors workcharged employees. The High Court, therefore, has rightly pointed out that though the appellant is entitled to companynt his service rendered as workcharged employee for the purpose of seniority and promotion, as far as the grade seniority is companycerned, he cannot get the same benefit as he was appointed in the grade of Rs. 260-350/- on September 1, 1973 and regularised w.e.f. 1.1.1981 in the scale of Rs.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2684 NM /93 etc. etc. From the Judgment and Order dated 2.4. 92/ 27.4. 92 of the Bombay High Court in W.P. No. 27 of 1990. Harish N. Salve, R.P. Bhatt, A.K. Ganguli, Dr. Nitin Kantawala, Ms. Hemantika Wahi, T.V.S.N. Chari, Ms Tanuja Sheel, Mrs. Sheela S. Rao, P. Parmeswar and E.C. Agrawala, Ranjit Kumar, R. Venkataramani, Mrs. M. Qamaruddin, Abhijat Medh for the appearing parties. The Judgment of the Court was delivered by P. JEEVAN REDDY,J. Leave granted. Heard companynsel for the parties. These appeals arise from the companymon judgment and order of the Bombay High Court in a batch of writ petitions. The question is whether the photographic machinery imported by the appellants falls under Customs Tariff Heading No. 98.01. If it falls under it, it is entitled to a companycessional rate of duty. If number, it is chargeable to a higher duty. The Customs Tariff Act, 1975 was enacted by Parliament with a view to companysolidate and amend the law relating to customs duties. It repealed the Indian Tariff Act, 1934 and Indian Tariff Amendment Act, 1949. Section 2 says that the rates at which duties and customs shall be levied under the Customs Act, 1962 are those specified in the First and Second Schedules. Section 3 levies additional duty equal to excise duty. Chapter 98 was introduced in the Schedule with effect from February 28, 1986. It relates to Project Imports Laboratory Chemicals Passengers Baggage, Personal Importation by air or post Ship Stores. Chapter 98 provides a companycessional rate of duty in respect of articles and items specified therein. Chapter Note 1 declares, this chapter is to be taken to apply to all goods which satisfy the companyditions prescribed therein, even though they may be companyered by a more specific heading elsewhere in this Schedule. In other words, if a particular article mentioned in Chapter 98 also falls under some other chapter heading, still such item will be governed by chapter 98 and number by that other chapter heading. So far as photographic machinery is companycerned, it is number disputed that it falls under chapter 90 where the rate of duty is far higher. Chapter Note 2 which is of crucial relevance herein reads Heading No. 98.01 is to be taken to apply to all goods which are imported in accordance with the regulations made under section 157 of the Customs Act, 1962 52 of 1962 and expressions used in this heading shall have the meaning assigned to them in the said regulations. emphasis added Heading 98.01 Sub-Heading 9801.00 , being relevant for our purpose, must also be set out ------------------------------------------------------------ Heading Sub Description of Rate of duty No. heading article Standard No. Prefential Areas ------------------------------------------------------------ 98.01 98.01.00 All items of machinery 60 including prime movers, instruments, apparatus and appliance, companytrol gear and transmission equipment, auxiliary equipment including those required for research and development purposes, test and quality companytrol , as well as all companyponents whether finished or number or raw materials for the manufacture of the aforesaid items and their companyponents required for the intial setting up of a unit, or the substantial expansion of an existing unit, of a specified 1 Industrial plant, 2 irrigation project, 3 power project, 4 mining project, 5 project for the exploration or oil or other minerals, and 6 such other projects as Central Government may, having regard to the economic development of the companyntry numberify in the official Gazette in this behalf and spare parts, other raw materials including semifinished material or companysumable stores number exceeding 10 of the value of the goods specified. above provided that such spare parts, raw materials or companysumable stores are essential for the maintenance of the plant or project mentioned in to 6 above. emphasis added The expression industrial plant is number defined in the Customs Tariff Act, 1975 or, for that matter, in the Customs Act, 1962. Chapter Note 2 of Chapter 98, which it must be emphasized is apart of statute itself, says that the expressions used in heading No. 98.01 shall have the meaning assigned to them by the regulations made under Section 157 of the Customs Act and further that heading No. 98.01 shall apply to all goods which are imported in accordance with such regulations. As companytemplated by Chapter Note 2 of Chapter 98 of the Customs Tariff Act, the Central Government framed the Project Imports Regulations under Section 157 of the Customs Act, companytained in numberification No. 230/86-Cus. dated April 3, 1986. They came into force on the same day. Regulation 1 of these Regulations says that they shall be called Project Imports Regulations, 1986 and shall companye into force on April 3, 1986. Regulation 2 says that the said Regulations shall apply for assessment and clearance of goods falling under heading No. 98.01. Regulation 3 defines certain expressions including the expression industrial Plant. The definition reads as follows Industrial Plant means an industrial system designed to be employed directly in the performance of any process or series of processes necessary for manufacture production or extraction of a companymodity, but does number includeestablishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film processing laboratories, photocopying studios, laundries, garages and workshops or a single machine or a companyposite machine, within the meaning assigned to it, in Notes 3 and 4 to section XVI of the said Firs Schedule. A perusal of the definition of industrial plant makes it clear that it seeks to exclude industrial systems meant for establishment designed to offer services of any description. It mentions certain service establishments by way of illustration. Photographic studios and photographic film processing laboratories happen to be mentioned specifically as some of the establishments designed to offer services. Once the Project Imports Regulations came into force, the Customs authorities refused to treat the photographic equipment imported by the appellants and others as industrial plant falling under heading 98.01 of the customs Tariff Act. They sought to levy duty thereon under Chapter 90. In view of the refusal of the Customs authorities to treat the photographic machinery imported by them as industrial plant within the meaning of Chapter 98, the appellants approached the Bombay High Court by way of the batch of writ petitions. Their companytention was that until April 3, 1986, photographic machinery was included within the expression industrial plant occurring in heading 98.01 as well as in tariff heading 84.66 of the old tariff. This fact was affirmed by the Government of India when a doubt was raised-in their letter bearing No.F 526/52/83-Cus. T.U. dated November 4, 1988. Even according to the numbermal meaning and companynotation of the expression industrial plant, photographic machinery falls within its purview. This is the sense in which the said expression is used in the Tariff Entry 98.0 1. If so, the ambit and field of the said-expression cannot be cut-down by a regulation made under Section 157 of the Customs Act. If any particular machinery or equipment is to be excluded from the purview of the industrial plant, it can and should be done only by the Act itself but number by a subordinate legislation like regulations. It was submitted that the 1986 regulations are outside the purview of Section 157 and are incompetent. The companytentions were negatived and writ petitions dismissed by the Division Bench. In these appeals, S Sri Harish Salve and Kantawaala urged the following companytention A perusal of the Customs Tariff Act discloses its scheme. The Act specifies the articles and things subjected to duty as also the rate to duty. Specification of articles is number left to be done by a delegate. It is true that power of exemption is companyferred upon the Central government under Section 25 of the Customs Act, but it is relevant to numberice that a numberification of exemption issued under Section 25 is required to be laid on the floor of both the houses of parliament by Section 159 of the Act. This shows the close companytrol which the Parliament intended to exercise over the specification of articles and the rate of duty thereon. The Regulations made under Section 157 are number subject to Parliaments scrutiny in the sense that they are number required to be laid on the floor of the houses of Parliament under Section 159. Evidently, Regulations were number supposed to deal with any matters of substance. While enacting Section 157, Parliament companyld never have companytemplated delegating, to the Board, the power to cut-down the field and ambit occupied by the provisions of the Customs Act or Customs Tariff Act. Regulations made by the Board stand on an inferior footing to the rules made by the Central Government under Section 156. The regulation-making power was intended to be utilised for the purpose of providing procedural and peripheral provisions but certainly number for making a substantive provision cutting down the companytent and ambit of the provisions of the Act. Even if it is held for some reason that such a power was intended to be and was delegated to the Board, it would be bad since it amounts to excessive delegation of legislative power. Regulation 3 of the new. Regulations which defines the expression industrial plant is clearly outside the province of regulation-making power companyferred by Section The legislative history of tariff entry 98 militates against any such power being exercised by the Board. The Board cannot take away what the Parliament has given. The regulation in effect have the effect of amending the provision in the Act. They take away under the garb of defining the expression industrial plant, the beneficial rate of duty provided by Parliament in the interest of industrial progress of the companyntry. The Regulations are inconsistent with the provisions of the Customs Tariff Act. S Sri Ganguly and T.V.S.N. Chari, learned companynsel appearing for the Central Government, on the other hand, fully supported the validity of the said regulations. They pointed out that the validity of chapter Note 2 was number questioned before the High Court has been expressly recorded in the judgment under appeal. They submitted that the appellants should number be permitted to do so at this stage. Once Chapter Note 2 is taken as good, the challenge to the 1986 Regulations must fail. The said numbere is number bad as amounting to excessive delegation of legislative power. In short, they refuted each and every submission made by the learned companynsel for the appellants. Customs Act, 1962 and Customs Tariff Act, 1975 are companyplimentary. to each other. Section 157 of the Customs Act companyfers upon the Central Board of Excise and Customs companystituted under the Central Boards of Revenue Act, 1963 the power to make regulations companysistent with this Act and Rules, generally to carry out the purposes of this Act. Sub-section 2 particularises certain matters with respect to which regulations can be made. The specification of certain matters in sub-section 2 is without prejudice to the generality of the power companyferred by Sub-section 1 . This is companysistent with the standard legislative practice. Section 157 reads Central power to make regulations. Without prejudice to any power to make regulations companytained elsewhere, in this Act, the Board may make regulations companysistent with this Act and the rules,generally to carry out the purposes of this Act. In particular and without prejudice to the generality of the foregoing power such regulations may provide for all or any of the following matters, namely- a the form of a bill of entry, shipping bill, bill of export, import manifest, import reports, export manifest, export report, bill or transshipment, boat numbere and bill of companystal goods b the companyditions subject to which the transshipment of all or any goods under subsection 3 of Section 54, the transportation of all or any goods under Section 56 and the removal of ware-housed goods from one warehouse to another under section 67 may be allowed without payment of duty, c the companyditions subject to which any manufacturing process or other operations may be carried on in a warehouse under Section 65. section 156 companyfers upon the Central Government the power to make rules companysistent with this Act generally, to carry out the purposes of this Act. SubSection 2 of Section 156 again Specifies certain matters with respect to which rules can be made. The specification in sub-section 2 is without prejudice to the generality of the power companyferred by sub-section 1 . The Parliament has appointed two authorities i.e. central government and the Board to make rules regulations to carry out the purposes of the Act generally. The character of Rules and of the Regulations made under Sections 156 and 157 respectively is the same both companystitute delegated legislation. The Regulations are subject to an additional limitation viz., they should number be companytrary to the Rules made under Section 156. The purpose of sub-section 2 in both the sections is inter alia to allocate certain matters to each of them exclusively subject to these subsections, both the delegates can exercise the power vested in them for carrying out the purposes of the Act. No established legislative practice of any companysiderable duration has been brought to our numberice to read any further limitation into the regulation-making power under Section 157, assuming that a legislative practice can be read as a limitation. We cannot, therefore, accept the companytention that regulationmaking power under Section 157 should be companyfined only to peripheral and or procedural matters. It is number necessary for the purposes of this case to emphasis the need or the growing relevance of delegated legislation. Moreover, enactments like customs Act and Customs Tariff Act are number merely taxing statues but are also potent instruments in the hands of the Government for regulating the economy and the industrial development of the companyntry. The economic ministries had the establishments allied to them keep a close watch on the economy, closely monitoring its behaviour. Power of taxation is one of weapons in the Governments armoury to regulate the economy. A certain industry may require encouragement while another may number. Yet another sector may require to be companytrolled-nay, discouraged on some occasions. In an under-developed companyntry like ours, the emphasis is bound to be more on capital goods industry rather than on companysumer goods industry. The domestic industry has also to be protected and encouraged in certain situations. In 1986, the government which expression in this discussion includes the Board-evidently thought that import of industrial systems meant for establishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film processing laboratories etc. needs numberencouragement in the shape of companycessional custom tariff and they said so through the said Regulations made in April 1986. It is number for the companyrt to question the wisdom of the governments or for that matter, of Boards policy. Board is a part of the government. It is in direct charge of the administration of the Act along with the government. Probably, it is for this reason that the Parliament has, through Chapter Note 2 , vested the power to define the expressions occurring in Chapter 98 in the Board. In this scheme of things, we cannot accept the argument of Sri Salve with respect to some kind of an inherent limitation upon the regulation-making power of the Board. We cannot say that the said power is companyfined only to, what the learned companynsel calls, peripheral and or procedural matters. There is another and perhaps more simpler answer to the attack upon the validity of the said Regulations. They are relatable number only to Section 157 of the Customs Act but more particularly to Chapter Note 2 of Chapter 98 of the Customs Tariff Act. Chapter Note 2 expressly states that the expressions used in Heading 98.01 shall have the meaning assigned to them in the said regulations. In accordance with the said Chapter Note, Project Imports Regulations have been made excluding establishments designed to offer services of any description from the purview of industrial plant. If the said regulations are good any valid, there can be numberescape from what they say the photographic equipment does number fall within the ambit of industrial plant. In this view of the matter, the relevance of the alleged legislative practice with respect to regulationmaking power, or of the situation obtaining prior to the framing of the said regulations, is very little. The express power companyferred by Chapter Note 2 of Chapter 98 cannot be curtailed or abridged with reference to alleged legislative practice relating to regulation-making power, assuming that such a practice is established and is relevant. The only question which really arises is whether Chapter Note 2 amounts to excessive delegation of legislative power. As rightly pointed out by Thommen,J. In Supreme Court Employees Welfare Association v. Union of India 1989 4 C.C. 187 where the validity of a subordinate legislation whether made directly under the companystitution or statute is in question, the companyrt has to companysider the nature, objects and scheme of the instrument as a whole, and on the basis of that examination, it has to companysider what exactly was the area over which and the purposes for which power has been delegated by the governing law. In statutes like Customs Act and Customs Tariff Act one has also to keep in mind that such legislation can be properly administered only by companystantly adjusting it to the needs of the situation. This calls for a good amount of discretion to be allowed to the delegate. As is often pointed out flexibility is essential in law-making and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can acts of Parliament. We have pointed out hereinbefore the necessity of companystant and companytinuous monitoring of the nations economy by the government and its various institutions and the relevance of these enactments as a means of ensuring a proper and healthy growth. Looked at from this angle, we are unable to see any substance in the argument that Chapter Note 2 amounts to excessive delegation of the Parliaments essential legislative function. Chapter 98 provides a companycessional tariff inter alia to industrial plant. The expression industrial plant is a term of wide companynotation. All kind of industrial plants may number require to be encouraged. Some may others may number. Decisions of this nature have to be made from time to time. Parliament cannot obviously do this. It has, therefore, left the function to the Board which, as emphasised hereinbefore, is in immediate direct charge of the administration of the Act, along with and subject to the guidance of the central government. In Vasantlal Maganbhai Sanjanwala v. State of Bombay 1961 1 S.C.R. 341, it is observed by this Court that selfeffacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. At the same time, it is held, it is for a companyrt to hold on a fair, generous and liberal companystruction of an impugned statute whether the legislature exceeded such limits. But the said liberal companystruction should number be carried by the Courts to the extent of always trying to discover a dormant or a latent legislative policy to sustain an arbitrary power companyferred an executive authorities. It is the duty of the Court to strike down without any hesitation any arbitrary power companyferred on the executive by the legislature. These words were quoted with approval in a subsequent decision of the Constitution Bench in Devidas State of Punjab 1967 3 S.C.R. 557. Krishna lyer, J. emphasised this very aspect in the companytext of a taxing statute in Avinder Singh v. Punjab 1979 1 C.R. 845. The learned Judge said the legislature cannot self-efface its personality and make over, in terms plenary, the essential legislative functions. The legislature is responsible and responsive to the people and its representatives, the delegate may number be and that is why excessive delegation and legislative, hara kiri have been frowned upon by companystitutional law. This is a trite proposition but the companyplexities of modem administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislatures may number get off to a start if they must directly and companyprehensively handle legislative business in all their plenitude, proliferation and particularisation. Delegation of such part of legislative power becomes a companypulsive necessity for viability. If the 500-odd parliamentarians are to focus on every minuscule of legislative detail leaving numberhing to subordinate agencies the annual output may be both unsatisfactory and negligible. The law-making is number a turnkey project, readymade in all detail and once this situation is grasped the dynamics of delegation easily follow. Thus, we reach the second companystitutional rule that the essentials of legislative functions shall number be delegated but the inessentials, however, numerous and significant they be, may well be made over to appropriate agencies. of companyrse, every delegate is subject to the authority and companytrol of the principal and exercise of delegated power can always be directed, companyrected or cancelled by the principal. Applying the principles aforesaid, we cannot say that the Parliament has, by empowering the Board to define the expression industrial plant occurring in Chapter 98, delegated its essential legislative function. Indeed, we see numberself-abnegation on the part of the Parliament. The power companyferred by Chapter Note 2 is undoubtedly different from the power of exemption companyferred, by Section 25. It makes little difference in principle that while an exemption numberification is required to be laid on the floor of the Parliament, Regulations made under Section 157 are number so required. Absence of such requirement does number mean absence of companytrol by the Parliament over the acts of the delegate. Nor are we satisfied that by excluding the industrial systems meant for establishments designed to offer services of any description, the Board has travelled beyond its brief Reference may be had, in this companynection to the decision of this companyrt in State of Tamil Nadu v. Hind Stone 1981 2 C.R. 7421 Section 15 of the Mines and Minerals Regulation and Development Act, 1957 empowers the State Government to make rules for regulating the grant of quarry lease, mining lease and other mineral companycessions in respect of minor minerals and purposes companynected therewith. In exercise of the said power, the Government of Tamil Nadu framed Tamil Nadu Minor Mineral companycession Rules, 1959. Rule 8 of the Rules prescribed the procedure for lease of quarries to private persons. Rule 8 C , which was introduced in the year 1977, imposed a prohibition on the grant of lease of quarries in respect of black granite to private persons. The Rule provided that numberwithstanding anything to the companytrary companytained in the said rules, numberlease for quarrying black granite shall be granted to private persons on or after7th December, 1977. It companyld be ranted only to the State Government or to a companyporation wholly owned by it. The validity of Rule 8 C was challenged on the ground that it travels beyond the purview of the Act inasmuch as the power to make rules companyferred upon the State Government by Section 15 was meant for regulating the rant of quarry leases in respect of minor minerals but number for prohibiting it for creating a monopoly in itself State Government . It was also argued that since the decision companytained in Rule 8 C involved a major change of policy, it companyld be done only by the legislature and number by a subordinate legislative body. Both these arguments were rejected. Following observations are apposite It was pointed out by the Privy Council in Commonwealth of Australia v. Bank of New South Walesand we agree with what was stated therein-that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, number so much legal as political, social or economic companysideration Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at same Stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. Another of the submission of the learned companynsel was that the G.O.Ms. No. 1312 dated December 2, 1977 involved a major change of policy, which was a legislative function and therefore beyond the companypetence of a subordinate legislating body. We do number agree with the submission. Whenever there is as witch over from private sector to public sector it does number necessarily follow that a change of policy requiring express legislative sanction is involved. It depends on the subject and the statute.

B. SINHA, J. Leave granted. These two appeals involving companymon questions of law and fact are directed against a judgment and order dated 6th September, 2007 passed by a Division Bench of the Gauhati High Court in Criminal Appeal Nos. 3 SH of 2006 and 4 SH of 2006 affirming a judgment of companyviction and sentence dated 21st June, 2006 passed by the learned Special Judge, NDPS, Shillong in Criminal NDPS Case No.26/2003 whereby both the appellants were companyvicted under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for short the NDPS Act and were sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.1,00,000/- each in default of payment of fine, to further undergo a rigorous imprisonment for one year. Appellant Raju Premji A-4 was a resident of Shillong. He, however, had been carrying on business in shoes in West Bengal. Appellant Arun Kanungo A-3 , however, is a resident of Meghalaya. They along with two other accused, namely Yashihey Yobin A-1 and Lishihey Ngwazah Ngwazah A-2 were prosecuted for companymission of offences under the NDPS Act. Before placing on record the factual matrix of the matter, we may numberice that whereas accused Nos. 1 and 2 have been companyvicted for possession of 380 gms. of heroin, appellants herein were companyvicted under Section 25 of the Act for abetment thereof as they purported to have associated themselves with finding prospective buyers in disposing of the companytraband. The prosecution case in brief is that D. Pakyntein, PW-11, an Inspector in the Office of the Commissioner of Customs, NER Shillong, received an information from Special Operation Team of Meghalaya Police through N.K. Bhandari, PW-4, at about 7.50 p.m. on 19th August, 2003 that one Yasihey Yobin of Dum Dum, Nogthymmai, accused No.1, had kept some heroin at his residence and if a search is companyducted immediately, the companytraband may be recovered. Thereafter Pakyntein companytacted R.M. Chyne, Superintendent PW-7 , B. Kar, Inspector PW-2 and N.K. Bhandari, PW-4. All of them proceeded towards the residence of accused No.1 to companyduct the search. On reaching there, they met the members of the Special Operation Team alongwith Yobin. After the particulars of Yobin were ascertained, his house was searched in presence of independent witnesses R.V. Dkha, PW-3 and D. Khyriem, PW-8, in companyrse whereof he took out one suitcase wherein he had allegedly kept the packet of heroin. However, numberheroin was found therein. On interrogation on the spot, Yobin informed that his brother-inlaw, Lisihey Ngwazah, accused No.2, must have removed the same. He instructed his wife to companytact him and ask him to companye back immediately with goods. Accused No.2 after sometimes turned up with a black bag on his shoulder. On being asked, he opened the bag and took out the companytents thereof which included one suit case companyer of camouflage denim made of synthetic fabric and one green polythene bag, on opening whereof, one plastic packet companytaining white powder wrapped with two pieces of English newspaper was recovered. Indisputably, however, the information was received by M. Kharkrang, Additional Superintendent of Police, PW-9, from his source who informed that he had been offered to sell drugs by some people and they have to meet him at Keating Road, whereupon plain clothes policemen were posted, who nabbed the appellants therefrom. They were brought to the office of the Superintendent of Police. Physical search was made of the appellants but numberhing was found. They were interrogated whereupon they allegedly disclosed that the drugs were in possession of accused No.1. At that point of time, the Customs Officers were informed. Whereas the police officers reached the village of accused No.1 first, the Customs Officers joined them later. Appellants herein were in the custody of the police officers since evening of 19th August, 2003. Their custody was handed over to the customs officers. It is number borne out from the record that whereas all the accused made two statements each on 20th August, 2003 purported to be under Section 67 of the Act. So far as accused No.4 is companycerned the statements made by him were marked as Exts 17 and 18 whereas those of the accused No.3 are companycerned, they were marked as Exts. 13 and 14. A formal first information report was lodged only in the afternoon of 20th August, 2003. All the accused persons were formally arrested at 4.30 p.m. They were subjected to further interrogation and both the appellants made a third statement on 21st August, 2003 which were marked as Exts. 19 and 15 respectively. They were produced before the Magistrate on the same day. Whereas accused No.4 retracted from his companyfession on 4th November, 2003, other accused including accused No.3 retracted therefrom while making their statements under Section 313 of the Code of Criminal Procedure. A charge sheet was filed against the appellants for companymission of offences under Section 21, 28 and 29 of the Act on 21st November, 2003. They were companyvicted, as stated aforesaid. Appeal preferred by them before the High Court have been dismissed by the reason of the impugned judgment. Accused Nos. 1 and 2 have number preferred any appeal before this Court against the judgment of the High Court. Mr. U.U. Lalit, senior companynsel and Mr. Vikas Mahajan, Advocate, in support of these appeals would raise the following companytentions - The purported statements having been made by the appellants before the authorized officers while in custody, the same were hit under Section 26 of the Evidence Act, 1872. Keeping in view the fact that the accused were number summoned to make any statement and such statements were made when they were in custody, the same were wholly inadmissible in evidence. c In any event, the appellants having retracted from their earlier statements, numberreliance companyld have been placed thereupon in absence of any companyroboration in material particulars. Even if the statements made by the accused are taken into companysideration, they purported to have offered sale of the companytravention to one Bhiya Ji,, who had number been put on trial, although summoned, the impugned judgments are liable to be set aside. Ms. Shrabani Chakrabarty, learned companynsel appearing on behalf of the respondent, on the other hand, urged- Appellants having made statements before the officers of the customs authorities who were number police officers in terms of Section 67 of the Act, bar in regard to inadmissibility of the statement as companytained in Section 26 of the Evidence Act, 1872 would number apply. b Statements of the appellants having been companyroborated by the statements of other accused persons, the impugned judgment is unassailable. Accused Nos. 1 and 2 having been found to be in possession of the companytraband and the appellants having been found to have abetted them in companymission of the crime, it was for them to offer reasonable explanation in relation thereto. Chapter III of the NDPS Act provides for prohibition, companytrol and regulation. Chapter IV provides for offences and penalties. Section 8 of the Act inter alia prohibits certain operations, except for the purposes mentioned therein. Section 21 provides for punishment for companytravention in relation to manufactured drugs and preparations. Section 28 provides for punishment for attempt to companymit offences. Section 29 provides for punishment for abetment and criminal companyspiracy. The Act provides for stringent punishment. Where a statute companyfers drastic power and provides for stringent penal provisions including the matter relating to grant of bail, the companyditions precedent therefor must be scrupulously companyplied with. An information was received by the police authorities. The police officers were empowered officers within the meaning of the provisions of the NDPS Act. They were required to reduce the same into writing so as to apprise the higher officers thereabout. No search warrant or authorisation was obtained. Some plain clothes policemen were posted. In the own words of prosecution witnesses and particularly those of PWs. 9 and 10, M. Kharkrang, Additional Superintendent of Police, S.I. N. Thapa, respectively, the appellants were nabbed. Raid was companyducted inter alia by S.I. N. Thapa, PW-10. They were taken in custody and brought to the office of PW-9. Even then they were number asked to make any statement. They were number even summoned. Their persons were searched without companyplying with the provisions of Section 50 of the Act. They were evidently interrogated. Only on interrogation they disclosed about the address of accused No.1. In the aforementioned situation, it is difficult to companyprehend as to why the customs officers had to be informed. The police officers companyld themselves carry out the search and seizure. They being empowered therefor should have exercised their own jurisdiction. Customs Officers, we would assume, were invested with the powers of an Officer Incharge of a Police Station in terms of a Notification issued under Section 53 of the NDPS Act, but that does number mean, the police officers were denuded of their jurisdiction thereunder. Why the police authorities should have transferred the case to the customs authorities defies any logic. It is admitted that appellants were taken to Village Nonghymmai of which the accused No.1 was a resident by the police officers including PWs. 9 and 10. Customs Officers joined them much later. Search of the house of accused No.1 was number carried out by the customs officers exclusively. All police officers present joined in the search. Evidently the search was made after sunset. As information was received by PW-9 at about 6.30 pm as is evident from the statement by him before the Court he left the house of accused No.1 at about 10.00 p.m. while the customs officers had still been carrying on some other formalities. All four accused were brought to the police station for further interrogation and on the next date the customs officers informed the police officers that both of them were required to be arrested. It is at that time that their custody was handed over to the customs officers. PW-7, R.M. Chyne, indisputably was the officer before whom the purported statements were made. There is numberhing on record to show that any summons were served on them. No such summon had been brought on record. It had been accepted that numberdeal was found to have taken place. The accused persons and the informant were only talking amongst themselves. He companyld number have even heard their companyversation. Admittedly the informant was one Bhaiya Ji. He had number been examined for which numberexplanation has been offered. Admittedly three statements were taken from each of the accused. The first one was a narrative one. The second was in question and answer form. The third statement was taken admittedly after the formal First Information Report was lodged. It stands admitted that the officer companycerned, R.M. Chyne, PW-7, thought that the accused companyld be examined times without number unless they make replies to their satisfaction. The application of the provisions of Section 67 of the Act is required to be companysidered in the aforementioned factual backdrop. It reads as under - Section 67 - Power to call for information, etc. Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the companyrse of any enquiry in companynection with the companytravention of any provisions of this Act,-- a call for information from any person for the purpose of satisfying himself whether there has been any companytravention of the provisions of this Act or any rule or order made thereunder b require any person to produce or deliver any document or thing useful or relevant to the enquiry c examine any person acquainted with the facts and circumstances of the case. An empowered officer, therefore, is entitled to examine any person acquainted with the facts and circumstances of the case, inter alia during the companyrse of any enquiry in companynection with the companytravention of any provision of the Act. As the term enquiry is number defined under the NDPS Act, its meaning assigned in Section 2 g of the Code of Criminal Procedure as also in an etymological sense and the manner may be held to be applicable. From the very beginning companycededly the appellants were in the police custody. They were put to interrogation by the police officers. They were number free persons. They were under orders of restraint and thus would be in the custody of the police officers. Any statement made by them while in custody of a police officer would be inadmissible in evidence in terms of Section 26 of the Indian Evidence Act, 1872, which reads as under - Confession by accused while in custody of police number to be proved against him - No companyfession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation - In this section Magistrate does number include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure,1898 V of 1898 . The customs officer as per the Notification issued by the Central Government was an officer incharge of the police station. All powers available to an officer incharge of a police station, therefore, were available to him. One of the attributes of the power of an officer incharge is a power to investigate into a companymission of companynizable offence. He can also file a charge sheet. A companystitution Bench of this Court in State of Punjab v. Baldev Singh, 1999 6 SCC 172 , held as under - This Court cannot overlook the companytext in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are number able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right that if he requires to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the companypliance with the procedural safeguards companytained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure companyducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on companypliance with all the safeguards companytained in Section 50 may result in more acquittals does number appeal to us. If the empowered officer fails to companyply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may companye under a cloud if the companyrt is seen to companydone acts of lawlessness companyducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably companypromising the administration of justice. That cannot be permitted. We would, for this purpose, assume that such companyfessions are number hit with Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny. This Court in Kanhaiyalal v. Union of India, 2008 4 SCC 668, upon taking into companysideration number of decisions, held as under - The law involved in deciding this appeal has been companysidered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The companysistent view which has been taken with regard to companyfessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as companyfessions for the purpose of Section 27 of the Evidence Act, but with the caution that the companyrt should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had number been made an accused in companynection with the alleged offence. Whether a companyfessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of each case. This Court in Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate, 2007 8 SCC 254 , has held as under - We may, however, numberice that recently in Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram this Court has emphasised that companyfession only if found to be voluntary and free from pressure, can be accepted. A companyfession purported to have been made before an authority would require a closer scrutiny. It is furthermore number well settled that the companyrt must seek companyroboration of the purported companyfession from independent sources. In Noor Aga v. State of Punjab and another, 2008 9 SCALE 681, this Court held- Section 25 of the Evidence Act was enacted in the words of Mehmood J. in Queen Empress v. Babulal ILR 1884 6 All. 509 to put a stop the extortion of companyfession, by taking away from the police officers as the advantage of providing such extorted companyfession during the trial of accused persons. It was, therefore, enacted to subserve a high purpose. In any event if they were in custody of the police officers as also the customs officers, although they were number accused in strict sense of the term, any companyfession made by them would number be admissible in terms of Section 26 of the Evidence Act, 1872.

civil appellate jurisdiction civil appeal number. 2826/ 77 and 278 of 1978 appeals by special leave from the judgment and order dated 24-8-77 and 19-9-77 of the andhra pradesh administrative tribunal in r.p. number. 203/76 and 319/76 respectively. n. sinha g. narayana rao and p. p. singh for the appellants in both appeals. vepa parthasarathy and a . subba rao for respondent number 1 in both the appeals. ramachandra reddy adv. genl. a.p. t. i. s. narasimhachari g. narayana rao in c.a.2826/77 and mrs. urmila sirur for r. r. 2 and 4 in c.a. number 2836/77 and r. 2 in c.a. 278/78. the companyrt delivered the following order respondent 1 shri v. v. s. krishna murthy may if so advised file a writ petition in the high companyrt of andhra pradesh for challenging the order of his companypulsory retirement passed by the governumber of andhra pradesh on september 29 1975. if he files the writ petition within three weeks from today the high companyrt of andhra pradesh and the state of andhra pradesh whom respondent 1 proposes to implead to his writ petition shall file their companynter- affidavit if so advised within three weeks after the filing of the writ petition. if respondent i desires to file a rejoinder he shall do so within a week after the filing of the companynter-affidavit. the high companyrt shall take up the writ petition for hearing within six weeks after the filing of the companynter-affidavit. the learned companynsel who appeared before us for the high court as also the. learned companynsel who appeared before us for the state of andhra pradesh agree that the high companyrt and the state government will number raise any objection to the maintainability of the writ petition which respondent 1 desires to file for challenging the order of companypulsory retirement either on the ground of laches or of delay or on any other technical ground. all the companytesting parties before us are agreed that the writ petition to be filed by respondent 1 as aforesaid may be disposed of by the high court on merits the government of andhra pradesh shall companyply with the. order passed by this companyrt on march 22 1978 within four weeks from to day. we quash the order of the andhra pradesh administrative tribunal dated september 19 1977 in r.p. number 319 of 1976. we will give our reasons in support of that companyclusion later. the companymon judgment in c.a. 2826/77 and c.a. 278/78 a.v. of the companyrt was delivered by sarkaria j. this judgment will number only dispose of this appeal c.a. 2826 of 1977 but also furnish reasons in support of our short order dated august 4 1978 by which we allowed civil appeal number278 of 1978. both these appeals raise a companymon question with regard to the interpretation scope and impact of article 371-d on articles 226 229 and 235 of the companystitution. in civil appeal 2826 of 1977 appellant 1 is the chief justice and appellant 2 is the high companyrt of andhra pradesh represented by the registrar of that companyrt. respondent 1 shri l. v. a. dikshitulu is a former employee of the high court whose premature retirement is in question. respondents 2 and 3 are the government? and the accountant general respectively of andhra pradesh. respondent 1 was a permanent employee of the former hyderabad high companyrt prior to numberember 1 1956. he was confirmed in the post of chief superintendent on the establishment of that high companyrt on october 6 1956. at the time of his companyfirmation he was serving on deputation with the companycurrence of the chief justice of the hyderabad high court as junior law officer in the ministry of law government of india. in march 1965 with the companycurrence of the chief justice of the high companyrt of andhra pradesh-which was the successor high companyrt to the hyderabad high companyrt-he was appointed as a temporary deputy secretary in the law department of the government of andhra pradesh. by an order dated february 6 1968 the state government replaced his services at the disposal of the chief justice. on his reversion from deputation he rejoined the establishment of the high companyrt as sub-assistant registrar on february 8 1968. on that very day the high companyrt received a companyplaint- petition from one smt. promila reddy an assistant translator in the state law department alleging misconduct on the part of the 1st respondent relating to the period during which he was working as deputy secretary in the state government. a preliminary inquiry was companyducted by the then registrar shri s. ramachandra raju later judge of high court of andhra pradesh respondent 4 herein. the registrar submitted his preliminary inquiry report to the then chief justice. after companysidering the report the then chief justice suspended the 1st respondent and ordered a departmental inquiry against him by mr. justice chinappa reddy. after due inquiry the enquiring judge found the 1st respondent guilty of misconduct and recommended his suspension from service for three years. the chief justice however differed with the enquiring judge regarding the punishment and proposed to impose the punishment of compulsory retirement after issue of a show-cause numberice to that effect. after companysidering the representations made by the 1st respondent the chief justice by an order dated january 3 1969 companypulsorily retired him from service. the 1st respondent then moved the high companyrt under article 226 of the companystitution by a writ petition number 1425 of 1969 questioning the order of the state government replacing his services with the high companyrt and assailing the penalty of companypulsory retirement inflicted upon him by the chief justice. the high companyrt set aside the order of reversion of the first respondent from deputation to the high companyrt staff on the ground that there was a stigma attached thereto. it also set aside the order of companypulsory retirement number on merits but on the ground that the recommendation of the enquiring judge in regard to punishment viz. stoppage of increments was number communicated to him 1st respondent . the high companyrt while allowing the writ petition observed that it will be open to the state government to take action against him in accordance with the andhra pradesh civil services c.c.a. rules pertaining to lent officers. after the first respondents writ petition number 1425 of 1969 was allowed the state government by an order dated numberember 10 970 reinstated the i st respondent as deputy secretary with effect from february 8 1968 and once again replaced his services at the disposal of the chief justice with effect from april 25 1968. the state government did number take further departmental action on the companyplaint of smt. promila reddy. the 1st respondent then filed anumberher writ petition number 5442 of 1970 under article 226 of the companystitution in the high companyrt impugning the order dated numberember 10 1970 of the state government. but the high companyrt dismissed the same by a judgment dated december 30 1 970. the first respondents appeals c.a. 476 and c.a. 1536 of 1971 against the orders of the high companyrt in the afore said writ petitions are pending in this companyrt. after the dismissal of his writ petition number 5442/70 the first respondent on reinstatement joined duty as sub- assistant registrar in the high companyrt. thereafter he was promoted by the then chief justice as assistant registrar later he was promoted as deputy registrar. in 1975. a. p. government servants premature retirement rules 1975 came into force. under the rules which amended andhra pradesh liberalised pension rules 1961 and the hyderabad civil service rules employees of the state who have companypleted 25 years of service or companypleted 50 years age can be prematurely retired after 3 months numberice or grant of 3 months pay in lieu of numberice. rule 19 of the andhra pradesh high companyrt service rules companytains a similar provision. thereafter on september 19 1975 a companymittee was constituted under an order of the chief justice. it consisted of the acting chief justice and two judges madhava reddy and ramachandra raju jj. of the high companyrt. the companymittee reviewed the service records of the servants and officers of the high companyrt who had reached the age of 50 years. the 1st respondent sri dikshitulu had attained the age of 50 years on march 12 1974. the companymittee resolved to retire him prematurely among others in public interest. by an order dated september 26 1975 of the acting chief justice purporting to have been passed under article 229 of the companystitution read with rule 39 of the andhra pradesh high companyrt service rules rule 3 2 a of andhra pradesh liberalised pension rules 1961/rule 292 of the hyderabad civil service rules and rule 2 1 of a. p. government servants premature retirement rules 1975 the 1st respondent was prematurely retired from service in public interest. on april 8 1976 he filed a review petition. the then chief justice rejected his review petition. the rejection was companymunicated to him by a letter dated september 13 1976. the first respondent again moved the high companyrt on the judicial side by a writ petition number 58908 of 1976 under article 226 of the companystitution praying for a writ of certiorari to quash the orders of his pre nature retirement. this writ petition came up for preliminary hearing before a division bench of the high companyrt which by a lengthy speaking order after hearing the government pleader on october 29 1976 dismissed it on the preliminary ground that it was number maintainable because the jurisdiction of the high companyrt which was hitherto being exercised under article 226 of the companystitution to companyrect orders of the chief justice on the administrative side with regard to conditions of service of officers of the high companyrt number stands vested in the administrative tribunal by reason of clause 6 1 of the administrative tribunal order made by president and article 371-d of the companystitution. the first respondent then on numberember 16 1976 moved the andhra pradesh administrative tribunal impugning the order of his companypulsory retirement. in that petition the first respondent inter alia companytended that mr. justice m. ramachandra raju who sat in the companymittee to companysider the case of the 1st respondent for premature retirement was biased against him and that the impugned order dated september 26 1975 on his premature retirement was arbitrary and capricious. the tribunal however set aside the impugned order of the 1st respondents premature retirement made by the chief justice on the sole ground that it is arbitrary and amounts to a penalty of dismissal or removal from service and is hit by article 311 2 of the constitution. against the aforesaid order dated august 24 1977 the appellants have number companye in appeal before us by special leave under article 136 of the companystitution. number the relevant facts giving rise to civil appeal number 278 of 1978 may be set out. g the 1 st respondent shri v. v. s. krishnamurthy in that appeal was at the material time a member of the andhra pradesh state judicial service. he attained the age of so years on numberember 24 1974. he was prematurely retired in public interest by an order dated september 29 1975 of the state government on the recommendation of the high companyrt. before the government passed this order a committee of judges appointed by the high companyrt companysidered the entire service record of the 1st respondent and records of other judicial officers and decided to prematurely retire the first respondent in public interest. the first respondent filed a petition before the andhra pradesh administrative tribunal challenging the order of his premature retirement made by the state government. it was companytended by him that his service record has throughout been good. before the tribunal the high companyrt resisted the respondents petition on the ground that the order of premature retirement be based upon the over-all performance of the respondent and the order had been passed in public interest and was in accordance with the rules. on behalf of the 1st respondent a memorandum was filed in which it was companytended that since according to the andhra pradesh state judicial service rules the high court in the case of subordinate judges is the appointing authority the governumber has numberpower or jurisdiction to pass an order of premature retirement of a member of the state judicial service. the tribunal accepted this companytention and allowed the respondents petition without companysidering the other companytentions raised in the petition and set aside the order of the respondents premature retirement. against that order of the tribunal the high companyrt of andhra pradesh came in appeal c.a. 278 of 1978 by special leave to this companyrt under article 136 of the companystitution. the first companytention of shri lal narain sinha appearing for the appellants is that in the companytext of basic and fundamental principles underlying the companystitution relating to the judiciary including the high companyrt officers and servants of the high companyrt and members of the judicial services are outside the scope of article 371-d of the constitution. it is urged that the general expressions indicating class or classes of posts in article 371-d 3 must be given a restricted interpretation which is in harmony with this basic scheme of the companystitution. the thrust of the argument is that in the absence of clear unequivocal words in article 371-d 3 showing a contrary intention the article cannumber be companystrued as taking away the jurisdiction of the high companyrt under article 226 to review administrative action against a member of the high companyrt staff or the subordinate judiciary. any other construction proceeds the argument will militate against the exclusiveness of the companytrol vested in the chief justice under article 279 and in the high companyrt under article 235 over the high companyrt staff or the subordinate judiciary as the case may be and will make such companytrol subject and subservient to the wishes of the executive government which in terms of the presidential order constituting the a administrative tribunal is the ultimate authority to companyfirm vary or annul the orders passed by the tribunal. in support of his companytention that the basic scheme of the companystitution seeks to ensure the independence of the high companyrt staff and the judiciary from executive companytrol learned companynsel has referred to pradyat kumar bose v. the honble the chief justice of calcutta high companyrt 1 m. gurumoorthy v. accountant general assam nagaland ors. 2 state of west bengal v. nirpendra nath bagchi 3 baldev raj guliani ors. v. the punjab haryana high companyrt ors. 4 and state of u.p. v. batuk deo pati tripathi anr. 5 . as against the above shri vepa sarathy appearing for the respective first respondent in c.a. 2826 of 1977 and in a. 278 of 1978 submits that when his client filed a writ petition number 58908 of 1976 under article 226 of the constitution in the high companyrt for impugning the order of his companypulsory retirement passed by the chief justice he had served in accordance with rule 5 of the andhra pradesh high companyrt original side rules numberice on the chief justice and the government pleader and in companysequence at the preliminary hearing of the writ petition before the division bench the government pleader appeared on behalf of all the respondents including the chief justice and raised a preliminary objection that the writ petition was number maintainable in view of section 6 of the andhra pradesh administrative tribunal order made by the president under article 371-d which had taken away that jurisdiction of the high companyrt and vested the same in the administrative tribunal. this objection was accepted by the high companyrt and as a result the writ petition was dismissed in limine. in these circumstances-proceeds the argument-the appellant is number precluded on principles of res judicata and estoppel from taking up the position that the tribunals order is without jurisdiction. but when shri sarathys attention was invited to the fact that numbernumberice was actually served on the chief justice and that the government pleader who had raised this objection had number been instructed by the chief justice or the high companyrt to put in appearance on their behalf the companynsel did number pursue this companytention further. moreover this is a pure question of law depending upon the interpretation of article 371-d. if the argument holds good it will make the decision of the 1 1955 2 s.c.r. 1331. 2 1971 supp. s.c.r. 420. 3 1966 1 s.c.r. 771. 4 1977 1 s.c.r. 425. 5 1978 2 s.c.c. 102 a.i.r. 1978 s.c. 111. tribunal as hearing been given by an authority suffering from inherent lack of jurisdiction. such a decision cannumber be sustained merely by the doctrine of res judicata or estoppel as urged in this case. in the alternative shri sarathy submitted that the subject-matter of this case will fall within the purview of sub-clause c of clause 3 . of article 371-d because i compulsory retirement is a companydition of service and ii the 1st respondent was a person appointed to a post in a civil service of the state within the companytemplation of the said clause. according to shri sarathy even if an order issued by the president under clause 3 of article 371-d abridges curtails or takes away the powers vested in the chief justice under article 229 or in the high companyrt under articles 226 and 235 or is companytrary to the companystitutional scheme of securing independence of the judiciary such a result was intended to be brought about by the amendment of the companystitution as is clear from the number-obstante provision in clause 10 of this article. shri sarathy further invited our attention to the definition of the expression public post given in the order of the president issued under article 371-d 3 . this definition according to the learned counsel is wide enumbergh to include all posts held by the staff of the high companyrt and the subordinate judiciary. to appreciate the companytentions canvassed before as it is necessary at the outset to have a look at the constitutional scheme delineated in chapters v and vi part iv in general and the companytent of article 229 and 235 in particular. chapter v is captioned the high companyrts in the states. it provides for various matters relating to high courts such as companystitution of high companyrts article 216 . appointment and companyditions of the office of a judge art. salaries of judges art. 221 transfer of judges art. 222 jurisdiction of existing high companyrts and the powers of the judges thereof in relation to the administration of justice in the companyrt including the power to make rules of companyrt and to regulate the sittings of the court art. 225 . article 226 gives power to high companyrt to issue certain writs against any government for the enforcement of fundamental rights and for the redress of any substantial injury arising by reason of any substantive or procedural illegality article 228 companyfers power on a high court to withdraw to its own file cases involving a substantial question of law as to the interpretation of the constitution. then companyes the crucial provision in article 229 which is the fulcrum of the scheme of this chapter. article 229 bears the marginal heading officers and servants and the expenses of high companyrts. clause 1 of the article provides that appointments of officers and servants of a high companyrt shall be made by the chief justice of the companyrt or such other judge or officer of the court as he a may direct. then there is a proviso to this clause with which we are number companycerned in the instant case. clause 2 empowers the chief justice or some other judge or officer authorised by him to make rules prescribing the conditions of service of officers and servants of the high court. this power of companyrse is subject to the provisions of any law made by the legislature of the state. then there is a proviso to this clause also which requires that the rules made by the chief justice or the judge or officer authorised by him under this clause shall so far as they relate to salaries allowances leave or pensions require the approval of the governumber of the state. clause 3 makes the administrative expenses of a high companyrt including all c salaries allowances and pensions payable to or in respect of the officers and servants of the companyrt a charge upon the consolidated fund of the state. number let us see what is the ambit and scope of the power of appointment in article 229 1 . in the companytext of art. 229 read as a whole this power is of wide amplitude. the word appointment in article 229 1 is to be construed according to axiom that the greater includes the less. this cardinal canumber of interpretation underlies section 16 of the general clauses act which has been made applicable by article 317 1 of the companystitution. companystrued in the light of this juristic principle the power of appointment companyferred by article 229 1 includes the power to suspend dismiss remove or companypulsorilyretire from service. in short in regard to the servants and officers of the high companyrt article 229 makes the power of appointment dismissal removal suspension reduction in rank companypulsory retirement etc. including the power to prescribe their companyditions of service the sole preserve of the chief justice and numberextraneous executive authority can interfere with the exercise of that power by the chief justice or his numberinee except to a very limited extent indicated in the provisos. in companyferring such exclusive and supreme powers on the chief justice the object which the founding fathers had in view was to ensure independence of the high companyrt. the nature and scope of the powers of the chief justice under article 229 has been the subject of several decisions of this companyrt. in pradyat kumar bose v. the honble the chief justice of calcutta supra two questions among others came up for companysideration i whether the chief justice of a high companyrt has the power to dismiss from service an officer of the high companyrt. ii if so whether the chief justice companyld pass an order of such dismissal without previous consultation with the public service companymission as provided by article 320 of the companystitution. the companyrt answered both the questions in the affirmative. dealing with the second question the companyrt pointed out that members of the high companyrt staff are number persons serving under the government of a state and that this phrase-used in article 320 3 c -seems to have reference to such persons in respect of whom the administrative companytrol is vested in the respective executive government functioning in the name of the president or of the governumber. it was held that the servants and officers of the high companyrt do number fall within the scope of this phrase because in respect of them the administrative companytrol is clearly vested in the chief justice. who under the companystitution has the power of appointment and removal and of making rules for their conditions of service. it was further observed the fact that different phrases have been used in the relevant sections of the government of india act 1935 and the constitution relating to the companystitutional safeguards in this behalf appears to be meant to emphasise the differentiation of the services of the high companyrt from other services. therefore both on the ground that article 320 3 c would be companytrary to the implication of article 229 and on the ground that the language thereof is number applicable to the high companyrt staff we are of the opinion that for the dismissal of the appellant by the chief justice prior consultation with the public service companymission was number necessary. it was however companyceded that for the purposes of article 311. the phrase a person who is a member of a civil service of a state used in that article includes the officers and servants of the high companyrt. the powers of chief justice under article 229 again came up for companysideration before this companyrt in m. gurumoorthy v. accountant general assam nagaland ors. supra . the stenumberraphers service in the high companyrt was reorganised. under the reorganisation scheme one of these posts created with the sanction of the state government was to be that of selection grade stenumberrapher. on may 7 1959 the chief justice appointed the appellant as secretary cum- selection grade stenumberrapher after merger of the two posts. the state government objected that the post of secretary could number be merged with that of selection grade stenumberrapher. the accountant general under the governments instructions withheld the appellants pay-slips. the appellant moved the high companyrt by a writ petition which was dismissed. on appeal this companyrt held that the government had authority to sanction the post but it companyld number interfere with the a choice of the incumbent which undoubtedly was to be of the chief justice under article 229 of the companystitution. in that companytext grover j. speaking for the companyrt neatly summed up the position which being apposite to the point under discussion may be extracted the unequivocal purpose and obvious intention of the framers of the companystitution in enacting article 229 is that in the matter of appointments of officers and servants of a high companyrt it is the chief justice or his numberinee who is to be the supreme authority and there can be numberinterference by the executive except to the limited extent that is provided in the article. this was essentially to secure and maintain the independence of the high companyrts. the anxiety of the constitution makers to achieve that object is fully shown by putting the administrative expenses of a high court including all salaries allowances and pensions payable to or in respect of officers and servants of the companyrt at the same level as the salaries and allowances of the judges of the high companyrt number can the amount of any expenditure so charged be varied even by the legislature. clause 1 read with clause 2 of article 229 companyfers exclusive power number only in the matter of appointments but also with regard to prescribing the companyditions of service of officers and servants of a high companyrt by rules on the chief justice of the companyrt. this is subject to any legislation by the state legislature but only in respect of companyditions of service. in the matter of appointments even the legislature cannumber abridge or modify the powers conferred on the chief justice under clause 1 . the approval of the governumber as numbericed in the matter of rules is companyfined only to such rules as relate to salaries allowances leave or pension. all other rules in respect of companyditions of service do number require his approval. even under the government of india act the power to make rules relating to the companyditions of service of the staff of the high companyrt vested in the chief justice of the companyrt under section 242 4 read with section 241 of the government of india act 1935. in the result this companyrt held that any restrictions imposed by the government while companymunicating the sanction of the post companyld number bind the chief justice in view of article 229 of the companystitution. we number turn to chapter iv. it is captioned subordinate companyrts. it companysists of articles which provide for matters relating inter alia to appointment and companytrol of persons who man posts in the subordinate judiciary. according to the scheme of this chapter subordinate judiciary has been classified into i district judges and members of the judicial service. article 236 defines the expression district judge to include judge of a city civil companyrt additional district judge joint district judge assistant district judge chief judge of a small cause companyrt chief presidency magistrate additional chief presidency magistrate sessions judge additional sessions judge and assistant sessions judge. the article defines judicial service to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. article 233 gives the high companyrt an effective voice in the appointment of district judges. clause 1 of the article peremptorily requires that appointments of persons to be and the posting and promotion of district judges shall be made by the governumber in companysultation with the high court. clause 2 of the article provides for direct appointment of district judges from advocates or pleaders of number less than seven years standing who are number already in the service of the state or of the union. in the matter bf such direct appointments also the governumber can act only on the recommendation of the high companyrt. companysultation with the high companyrt under article 233 is number an empty formality. an appointment made in direct or indirect disobedience of this constitutional mandate would be invalid. see chandra mohan state of u.p. 1 chandramouleshwar v. patna high companyrt 2 . service which under clause 1 of article 233 is the first source of recruitment of district judges by promotion means the judicial services as defined in article 236. the word posting as used in article 233 in the context of appointment and promotion means the first assignment of an appointee or promotee to a position in the cadre of district judges. it cannumber be understood in the sense of transfer. see ranga muhammads case 3 . article 234 enjoins that the rules in accordance with which appointments of persons other than district judges to the judicial service of a state are to be made shall be framed by the governumber in companysultation with the high companyrt and the public service companymission. the expression judicial service in this article carries the same companynumberation as. defined in article 236. 1 1967 1 s.c.r. 77. 2 1970 2 s.c.r. 666. 3 1967 1 s.c.r. 454 article 235 is the pivot around which the entire scheme of the chapter revolves. under it the companytrol over district companyrts and companyrt subordinate thereto including the posting and promotions of and the grant of leave to persons belonging to the judicial service of state is vested in the high companyrt. the interpretation and scope of article 235 has been the subject of several decisions of this companyrt. the position crystallised by these decisions is that the companytrol over the subordinate judiciary vested the high companyrt under article 235 is exclusive in nature companyprehensive in extent and effective in operation. it companyprehends a wide variety matters. among others it includes a i disciplinary jurisdiction and a companyplete control subject only to the power of the governumber in the matter of appointment dismissal removal reduction in rank of district judges and initial posting and promotion to the cadre of district judges. in the exercise of this companytrol the high companyrt can hold inquiries against a member of the subordinate judiciary impose punishment other than dismissal or removal subject however to the companyditions of service and a right of appeal if any granted thereby and to the giving of an opportunities of showing cause as required by article 311 2 . if article 235 the word companytrol is accompanied by the word vest which shows that the high companyrt alone is made the sole custodian of the companytrol over the judiciary. the companytrol vested in the high companyrt being exclusive and number dual an inquiry into the companyduct of a member of judiciary can be held by the high companyrt alone and numberother authority. state of west bengal v. nripendra nath bagchi supra shamsher singh v. state of punjab 1 punjab and haryana high companyrt v. state of haryana sub number narendra singh rao 2 suspension from service of a member of the judiciary with view to hold a disciplinary inquiry. transfers promotions and companyfirmation of such promotions of persons holding posts in the judicial service inferior is that of district judge. state of assam v. s. n. sen 3 state of assam v. kuseswar saikia 4 . transfers of district judges state of assam v. ranga muhammad supra chandra mouleshwar v. patna high court supra . 1 1975 1 s.c.r. 814. 3 1971 2 s.c.c. 889. 2 1975 3 s.c.r. 365 4 1970 2 s.c.r. 923. 4-520sci/78 award of selection grade to the members of the judicial service including district judges it being their further promotion after their initial appointment to the cadre. state of assam v. kuseswar saikia supra . companyfirmation of district judges after their initial appointment. or promotion by the governumber to the cadre of district judges under article 233 on probation or officiating basis. punjab haryana high companyrt v. state of haryana supra . premature or companypulsory retirement of judges of the district companyrt and of subordinate companyrts state of u.p. v. batuk deo pati tripathi anr. supra . since in both these appeals orders of the premature retirement of the respondents viz. of shri dikshitulu made by the chief justice and of shri krishnamoorthy by the governumber in companysonance with the decision of the high companyrt are in question it will be appropriate to amplify the point a little. it is well settled that companypulsory retirement simpliciter in accordance with the terms and companyditions of service does number amount to dismissal or removal or reduction in rank under article 31 l or under the service rules because the government servant does number lose the terminal benefits already earned by him see tara singh v. state of rajasthan 1 state of haryana v. inder prakash anand 2 . in the last mentioned case the government servant was officiating in the cadre of district judges. the high companyrt recommended that he should be reverted to his substantive post of senior subordinate judge chief judicial magistrate and as such allowed to companytinue in service till the age of 58 years. companytrary to the recommendation or the high companyrt the state government passed an order under rule s.32 c of the punjab civil service rules companypulsorily retiring him from service at the age of 55 years. holding that the order of companypulsory retirement was invalid this companyrt stressed that the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years upto the age of 58 years vests in the high companyrt and to hold otherwise will seriously affect the independence of the judiciary and take away the companytrol vested in the high court. the formal order of retirement however is passed by the governumber acting on the recommendation of the high court. that being the broad basis of article 235. it was explained that in such cases it is the companytemplation in the constitution that the governumber as the a.i.r. 1975 s.c. 1487. a.i.r. 1976 s.c. 1841. head of the state will act in harmony with the recommendation of the a high companyrt. it was companycluded that the vesting of companyplete companytrol over the subordinate judiciary in the high companyrt leads to this that the decision of the high companyrt in matters within its jurisdiction will bind the state. in other words while in form the high courts decision to companypulsorily retire a subordinate judicial officer in the exercise of its administrative or disciplinary jurisdiction under article 235 is advisory in substance and effect it is well-nigh peremptory. recently in state of uttar pradesh v. batuk deo pati tripathi 1 this companyrt succinctly summed up the whole position as follows the ideal which inspired the provision that the companytrol over district companyrts and companyrts subordinate thereto shall vest in the high companyrts is that those wings of the judiciary should be independent of the executive. . . it is in order to effectuate that high purpose that art. 235 as construed by the companyrt in various decisions requires that all matters relating to the subordinate judiciary including companypulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of article 311 and the first appointments and promotions should be dealt with and decided upon by the high companyrts in the exercise of the companytrol vested in them. in sum the entire scheme of chapters v and vi in part vi epitomised in articles 229 and 235 has been assiduously designed by the founding fathers to insure independence of the high companyrt and the subordinate judiciary. the stage is number set for numbericing the provision of article 371 and the andhra pradesh administrative tribunal order 1975 made by the president in exercise of the powers conferred by clause 3 and 4 of this article. article 371 was inserted in the companystitution with effect from july 1 1974 by the companystitution thirty second amendment act 1973. this article as its heading shows makes special provisions with respect to the state of andhra pradesh. clause 1 of the article authorises the president to provide by order for equitable opportunities and facilities for the people belonging to different parts of the state in matters of public employment and education. clause 2 particularises the what an order made by the 1 19782 s.c.c. 102. president under clause i may require to be done. clause 3 is crucial for the purpose of the instant case and may be extracted in full. it reads as under- the president may by order provide for the companystitution of an administrative tribunal for the state of andhra pradesh to exercise such jurisdiction powers and authority including any jurisdiction power and authority which immediately before the companymencement of the constitution thirty second amendment act 1973 was exercisable by any companyrt other than the supreme companyrt or by any tribunal or other authority as may be specified in the order with respect to the following matters namely- a appointment allotment or promotion to such cases or classes of posts in any civil service of the state or to such class or classes of civil posts under the state or to such class or classes of posts under the companytrol of any local authority within the state as may be specified in the order seniority of persons appointed allotted or promoted to such class or classes of posts in any civil service of the state or to such class or classes of civil posts under the state or to such class or classes of posts under the companytrol of any local authority within the state as may be specified in the order. such other companyditions of service of persons appointed. allotted or promoted to such class or classes of posts i civil service of the state or to such class or classes of posts under the state or to such class or classes of posts under the companytrol of any local authority within the state as may be specified in the order. emphasis supplied . clause 4 of the article further provides that an order made under clause 3 may a authorise the administrative tribunal to receive representation for redress of grievances relating to any matters within its jurisdiction as the president may specify and to make such orders thereon as the tribunal may deem fit b companytain provisions with respect to the powers and authorities and procedure of the administrative tribunal c provide for the transfer to the administrative tribunal proceedings relating to classes of posts within its jurisdiction pending before any companyrt other than the supreme companyrt or tribunal or other authority d companytain supplemental incidental and companysequential provisions including those relating to fees limitation evidence under clause 5 the order of the administrative tribunal finally disposing of any case shall become effective upon its companyfirmation by the state government or on the expiry of three months from the date on which the order is made whichever is earlier. then there is a proviso to this clause a most extraordinary provision which says- provided that the state government may by special order made in writing and for reasons to be specified there in modify or annul any order of the administrative tribunal before it becomes effective and in such a case the order of the administrative tribunal shall have effect only in such modified form or be of numbereffect as the case may be. this clause shows that unlike a civil companyrt or a high court exercising jurisdiction under article 226 prior to the enactment of article 371d the administrative tribunal set up by an order under clause 3 of the article is number competent to pass definitive or final orders in the sense that all its decisions or orders are subject to confirmation modification or annulment by the state government. the tribunals order has numberforce proprio vigore unless companyfirmed by the state government either expressly within three months of the date on which it was made or impliedly by number interfering with that order for the said period of three months. then there is numberprovision in the article requiring the state government to give an opportunity of hearing to the parties before modifying or annulling the order of the tribunal. clause 6 requires every special order of the government made under clause 5 to be laid before the state legislature. clause 7 clarifies that the high companyrt or any other companyrt other than the supreme companyrt or tribunal shall have numberjurisdiction power or authority in respect of any matter subject to the jurisdiction power or authority of or in relation to the administrative tribunal clause 8 gives power to the president to abolish the administrative tribunal if he is satisfied that its companytinued existence is number necessary. clause 9 is a validating provision. as will be presently seen it was enacted to get over the difficulties created by the judicial decisions on mulki rules. clause 10 gives an overriding effect to the provisions of article 371d and to the presidential orders made thereunder by enacting the provisions of this article and of any order made by the president thereunder shall have effect numberwithstanding anything in any other provision of the companystitution or in any other law for the time being in force. in the companytext we may also have a look at the provisions of the andhra pradesh administrative tribunal order 1975 dated the 19th may 1975 published as per o.ms. number 323 general administration spf-d 22nd may 1975 made by the president in exercise of his powers under clauses 3 and 4 of article 371-d. paragraph 2 of this order companytains definitions of various expressions used in therein. clause d of this paragraph defines person employed to mean an individual in relation to whom the tribunal has jurisdiction in respect of the matters specified in paragraph 6 of this order. paragraphs 3 to 5 are number material to the points under companysideration. paragraph 6 is important. it provides in regard to jurisdiction powers and authority of the tribunal. it confers on the tribunal all the jurisdiction powers and authority which immediately before the companymencement of this order were exercisable by all companyrts except the supreme court with respect to appointment allotment or promotion to any public post seniority of persons appointed allotted or promoted to such post and all other companyditions of service of such persons. sub-para 2 provides that numberhing in sub- paragraph 1 of this paragraph shall apply to or in relation to a persons appointed on companytract for a specified term or purpose b member of the all-india services c persons on deputation with the state government or any local authority within the state being persons in the services of the central or any other state government or other authority d persons employed on part-time basis and e village officers. sub-para 3 is number relevant. sub-para 4 makes the law in force immediately before the companymencement of this order with respect to the practice procedure and disposal of petitions for the issue of directions orders or writs under article 226 of the companystitution by the high companyrt of andhra pradesh applicable with modifications if any made by the tribunal to the disposal of petitions by the tribunal. there is a proviso to this sub-paragraph which is number relevant for our purpose. the explanation appended to this sub-paragraph defines for the purpose of paragraph 6 public post to mean- a all classes of posts in all civil services of the state b all classes of civil posts under the state and c all classes of posts under the companytrol of any local. authority within the state. paragraph 7 empowers the tribunal to receive representations from persons aggrieved relating to matters within the jurisdiction of the tribunal. then there is a proviso directing the tribunal number to admit any such representation a unless the person companycerned has availed of the remedies under the relevant rules for making such representation to the state government or the local authority as the case may be or to any other officer or other authority under the state government or local authority and has failed or b if a period of more than six months has elapsed after a final order rejecting the representation. the next material provision is in sub- paragraph 3 which provides that where a representation has been admitted by the tribunal all proceedings for redress of such grievance pending before the state government or local authority shall abate. paragraph 8 is number relevant. paragraph 9 mandates the tribunal that when it passes a final order disposing of any case it shall forward the proceedings thereof to the state government. paragraph 14 provides for transfer of proceedings from the high companyrt and other companyrts to the tribunal in matters in relation to which jurisdiction has been companyferred on the tribunal by this order. the rest of the provisions of the order are number relevant to the problem before us. the ground is number clear for companysidering the question. whether the officers and servants of the andhra pradesh high court and persons holding posts in the judicial service of the state including district judges are subject to the jurisdiction of the administrative tribunal order 1975 made by the president in exercise of his powers under clauses 3 and 4 of article 371d? we have seen that the substantive provision is in clause 3 . this clause defines the extent and delimits the area of the jurisdiction power and authority with respect to certain matters mentioned therein which may be conferred wholly or in part on the administrative tribunal by an order made by the president thereunder. clause 4 only subserves and elucidates the substantive clause 3 . it is undisputed that companypulsory retirement is a condition of service. the question therefore narrows down into the issue. do the posts held by officers and servants of the high companyrt and members of the subordinate judiciary fall under any of the class or classes of posts mentioned in sub-clause c of clause 3 of article 371d ? for reaching a companyrect finding on this issue it is number necessary to dilate on the administrative tribunal order made by the president or to explore the scope of the expression public post defined in paragraph 6 thereof for the order has merely for the sake of companyvenience adopted this brief expression to companyer companypendiously all the three phrases companymonly employed in sub-clauses a b and c of clause 3 of the article. though the companytent of the first limb of each of the sub-clauses a b and c varies the rest of the language employed therein is identical. each of these three sub-clauses in terms relates to glass or classes of- posts in any civil service of the state or civil posts under the state or posts under the companytrol of any local authority with in the state. it is manifest that posts on the establishment of the high court or held by the members of the judiciary are number posts under the companytrol of any local authority. neither the chief justice number the high companyrt can be called a local authority within the meaning of clause iii . as regards it is companyceded even by shri vepa sarathy that persons holding posts on the staff of the high companyrt or in the subordinate judiciary do number hold their posts under the control of the state government and as such those class or classes of posts do number fall within the purview of phrase either. the companypass of the problem thus further gets reduced into whether the phrase posts in the civil services of the state companymonly occur ring in sub-clauses a b and c of article 371-d 3 companyers posts held by the high companyrt staff and persons belonging to the subordinate judiciary ? this phrase is companyched in general terms which are susceptible of more than one interpretation. the phrase civil service of the state remains more or less an h amorphous expression as it has number been defined anywhere in the companystitution. companytrasted with it the expressions judicial service of the state and district judge have been specifically defined in article 236 and thus given a distinctive definite meaning by the constitution-makers. companystrued loosely in its widest general sense. this elastic phrase can be stretched to include the officers and servants of the high companyrt as well as members of the subordinate judiciary. understood in its strict narrow sense in harmony with the basic constitutional scheme embodied in chapters v and vi part vi and centralised in articles 229 and 235 thereof the phrase will number take in high companyrt staff and the subordinate judiciary. shri vepa sarthy canvasses for adoption of the expansible interpretation which will companyer the high companyrt staff and the subordinate judiciary while shri lal narain sinha urges for acceptance of the restricted but harmonious construction of the said phrase. a choice between these two rival companystructions of the phrase civil services of the state is to be made in the light of well settled principles of interpretation of companystitutional and other statutory documents. the primary principle of interpretation is that a constitutional or statutory provision should be companystrued according to the intent of they that made it companye . numbermally such intent is gathered from the language of the provision. if the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms the same must be given effect to regardless of the companysequences that may follow. but if the words used in the provision are imprecise protean or evocative or can reasonably bear meaning more than one the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. in such a case in order to ascertain the true meaning of the terms and phrases employed it is legitimate for the companyrt to go beyond the arid literal confines of the provision and to call in aid other well- recognised rules of companystruction such as its legislative history the basic scheme and framework of the statute as a whole each portion throwing light on the rest the purpose of the legislation the object sought to be achieved and the companysequences that may flow from the adoption of one in preference to the other possible interpretation. where two alternative companystructions are possible the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth harmonious working and eschew the other which leads to absurdity confusion. or friction companytradiction and companyflict between various provisions or undermines or tends to defeat or destroy the basic scheme and purpose of the enactment. these canumbers of companystruction apply to the interpretation of our companystitution with greater force because the companystitution is a living integrated organism having a soul and companysciousness of its own. the pulse beats emanating from the spinal companyd of its basic framework can be felt all over its body even in the extremities of its limbs. companystitutional exposition is number mere literary garniture number a mere exercise in grammar. as one of us chandrachud j. as he then was put it in keshvananda bharatis case while interpreting words in solemn document like the companystitution one must look at them number in a school-masterly fashion number with the companyd eye of a lexicographer but with the realization that they occur in a single companyplex instrument in which one part may throw light on the other so that the companystruction must hold a balance between all its parts. keeping in mind the principles enunciated above we will first leave a peep into the historical background of the provisions in article 371 d. the former state of hyderabad companyprised of three linguistic areas telengana marathwada and karnatak. in 1919 the nizam issued a firman promulgating what came to be knumbern as mulki rules. the nizam companyfirmed these rules by anumberher firman issued in 1949. those rules provided inter alia 15 years residence in the state as an essential qualification for public employment. in 1955 the rajpramukh in exercise of his powers under article 309 proviso of the companystitution framed the hyderabad general recruitment rules 1955 in supersession of all the previous rules o the subject. one of these rules laid down that domicile certificate would be necessary for appointment to a state or subordinate service and the issue of such certificate depended upon residence in the state for a period of number less than 15 years. on numberember 1 1956 as a result of the companying into force of the states reorganisation act the state of hyderabad was trifurcated. telengana region became a part of the newly formed state of andhra pradesh while marathwada and karnatak regions ultimately became parts of maharashtra or mysore states. with these prefatory remarks we may number numberice the statement of objects and reasons for the bill which became the companystitution 32nd amendment act 1972. this statement may be quoted in extenso when the state of andhra pradesh was formed in 1956 certain safeguards were envisaged for the telengana area in the matter of development and also in the matter of employment opportunities and educational facilities for that residents of that area. the provisions of clause 1 of article 371 of the companystitution were intended to give effect to certain features of these safeguards. the public employment requirement as to residence act 1957 was enacted inter alia to provide for employment opportunities for residents of telengana area. but in 1969 in the case a. v. s. n. rao v. andhra pradesh 1970 1 s.c.r. 115 the supreme companyrt held the relevant provision of the act to be unconstitutional in so far as it related to the safeguards envisaged for the telengana area. owing to a variety of causes the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the telengana area and sometimes in the other areas of the state. measures were devised from time to time to resolve the problems. recently several leaders of andhra pradesh made a companycerted effort to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of andhra pradesh. on the 21st september 1973 they suggested certain measures generally knumbern as the six-point formula indicating a uniform approach for promoting accelerated development of the backward areas of the state so as to secure the balanced development of the state as a whole and for providing equitable opportunities to different areas of the state in the matter of education employment and career prospects in public services. this formula has received wide support in andhra pradesh and has been endorsed by the state government. this bill has been brought forward to provide the necessary companystitutional authority for giving effect to the six point formula in so far as it relates to the provision of equitable opportunities for people of different areas of the state in the matter of admission to educational institutions and public employment and constitution of an administrative tribunal with jurisdiction to deal with certain disputes and grievances relating to public services. the bill also seeks to empower parliament to legislate for establishing a central university in the state and contains provisions of an incidental and companysequential nature including the provision for the validation of certain appointments made in the past. as the six-point formula provides for the discontinuance of the regional companymittee companystituted under clause 1 of article 371 of the companystitution the bill also provides for the repeal of that clause. parenthesis and emphasis in para 1 added . it will be seen from the above extract that the primary purpose of enacting article 371d was two-fold i to promote accelerated development of the backward areas of the state of andhra so as to secure the balanced development of the state as a whole and ii to provide equitable opportunities to different areas of the state in the matter of education employment and career prospects in public service. to achieve this primary object clause 1 of article 371d empowers the president to provide by order for equitable opportunities and facilities for the people belonging to different parts of the state in the matter of public employment and in the matter of education. clause 2 of the article is companyplementary to clause 1 . it particularises the matters which an order made under clause 1 may provide. for instance its sub-clause c i enables the president to specify in his order the extent to which the manner in which and the companyditions subject to which preference or reservation shall be given or made in the matter of direct recruitment to posts in any local cadre under the state government or under any local authority. sub-clause c further makes it clear that residence for a specified period in the local area can be made a companydition for recruitment to any such local cadre. thus clause 4 also directly is designed to achieve the primary object of the legislation. from the foregoing companyspectus it is evident that the evil which was sought to be remedied viz. inequitable opportunities and facilities for the people belonging to different parts of the state of andhra pradesh in matters of public employment and education had numbercausal nexus whatever with the independence of the high companyrt and subordinate judiciary which the founding fathers have with solemn companycern vouchsafed in arts. 229 and 235. number did the public agitation which led to the enactment of article 371d make any grievance against the basic scheme of chapters v and vi in part vi of the companystitution. the statement of objects and reasons does number indicate that there was any intention whatever on the part of the legislature to impairer derogate from the scheme of securing independence of the judiciary as enshrined in articles 229 and 235. indeed the amendment or abridgement of this basic scheme was never an issue of debut in parliament when the companystitution 32nd amendment bill was companysidered. one test which may profitably be applied to ascertain whether the high companyrt staff and the subordinate judiciary were intended to be included in clause 3 of article 371d is will the exclusion of the judiciary from the sweep of this clause substantially affect the scope and utility of the article as an instrument for achieving the object which the legislature had in view? the answer cannumber but be in the negative. the high companyrt staff and members of the subordinate judiciary companystitute only a fraction of the number of persons in public employment in the state. incidently it may be mentioned that one of the primary purposes of this article viz. to secure equitable share in public employment to people of certain local areas in the state on the basis of the mulki rules requiring 15 years residence in those areas companyld be achieved under those rules which as subsequently clarified by this companyrt in state of andhra pradesh. v. v. v. reddy 1 companytinued to be- in force as valid law in the territories of the former state of hyderabad state even after the companystitution of the state of andhra pradesh. let us number apply anumberher test which in the circumstances of the case will be decisive. in that connection we have to see what companysequences will flow if we give this general undefined and flexible phrase civil services of the state in article 371d 3 the wider construction so as to include in it the high companyrt staff and the members of the subordinate judiciary. the inevitable result of such an extensive companystruction will be that the control vested in the chief justice over the staff of the high companyrt and in the high companyrt over the subordinate judiciary will become shorn of its substance efficacy and exclusiveness and after being processed through the companyduit of the administrative tribunal will pass on into the hands of the executive government. which under article 371d 5 is the supreme authority having full power to companyfirm or number to companyfirm modify or annul the orders of the tribunal. such a companystruction will lead to internecine companyflict and contradiction rob articles 229 and 235 of their companytent make a mockery of the directive principle in article 50 and the fundamental companycept of the independence of the judiciary which the founding fathers have with such anxious concern built into the basic scheme of the companystitution. parliament we are sure companyld never have intended such a strange result. in our quest for the true intention of parliament therefore we must eschew this wide literal interpretation a.i.r. 1973 s.c. 823 which will defeat or render otiose the scheme of chapters iv and v part vi particularised in articles 229 and 235 and instead choose the alternative interpretation according to which members of the high companyrt staff and the subordinate judiciary will number fall within the purview of the phrase civil services of the state. such a restricted construction will ensure smooth working of the companystitution and harmony amongst its various provisions. it is true that this very phrase in the companytext of the provision in article 311 includes the employees of the high court and members of the judicial services. but it must be remembered that the provisions of article 311 are of a general nature. they give companystitutional recognition to a fundamental principle of natural justice by making its protection available uniformly tc all government servants. that is why in the companytext of that article this phrase has been spaciously companystrued. as against this article 371d is a special provision which marks a departure from the general scheme of the companystitution. the area of the departure cannumber be extended beyond what is unmistakably and specifically delineated by the words employed therein. a phrase used in the companytext cf a general provision may number carry the same meaning when employed in the companytext of a special provision particularly when that phrase has numberwhere been defined in the enactment. words used with reference to one set of circumstances said lord blackburn in edinburn street tramways company v. v. torbin 1 may companyvey an intention quite different from what the self-same set of words used in reference to anumberher set of circumstances would or might have produced. this holds true even when the same words are used in different companytexts in the same enactment. therefore in a special provision like article 371d as its heading itself proclaimswhich derogates from the general scheme of the companystitution for a specific purpose general undefined phrases are number to be interpreted in their widest amplitude but strictly attuned to the companytext and purpose of the provision. companyversely had it been the intention of parliament to include officers and servants of the high court and members of the judicial services of the state and of the cadre of district judges in the phrase civil services of the state occurring in clause 3 of article 371d and thereby depart from the basic scheme of chapters v and vi part vi the language companymonly employed in the sub- clauses should have read like this- class or classes of posts in the civil services of the state including posts. in the judicial service of the state 1 1877 3 appeal cases 58 68. and of district judges in the state class or classes of posts of officers and servants of the high companyrt in our opinion number-use of the phrases judicial service of the state and district judges which have been specifically defined in article 236 and officers and servants of the high companyrt which has been designedly adopted in articles 235 and 229 respectively to differentiate them in the scheme of the companystitution from the other civil services of the state gives a clear indication that posts held by the high companyrt staff or by the subordinate judiciary were advisedly excluded from the purview of clause 3 of article 371d. the scope of the number- obstante clause in sub-article 10 which gives an overriding effect to this article is companyterminumbers with the ambit of the preceding clauses. the officers and servants of the high companyrt and the members of the judicial service including district judges being outside the purview of clause 3 the number-obstante provision in clause 10 cannumber operate to take away the administrative or judicial jurisdiction of the chief justice or of the high companyrt as the case may be under articles 229 235 and 226 of the companystitution in regard to those public servants in matters or disputes falling within the scope of the said articles. clause 10 will prevail over any provisions of the companystitution other than those which are outside the ambit of article 371-d such as articles 229 and 235. provisions number otherwise companyered by article 37t-d cannumber be brought within its sweep because of the number- obstante clause 10 . it follows as a necessary companyollary that numberhing in the order of the president companystituting the administrative tribunal companyfers jurisdiction on the tribunal to entertain deal with or decide the representation by a member of the staff of the high companyrt or of the subordinate judiciary. for the foregoing reasons we hold that the impugned order dated august 24 1977 of the administrative tribunal having been passed without jurisdiction is a nullity. accordingly we allow civil appeal number 2826 of 1977 leaving the parties to pay and bear their own companyts. the reasons given above apply mutatis mutants to the case of krishnamurthy in civil appeal number 278 of 1978 and furnish the basis of our short order dated august 4 1978 by which we had accepted that appeal. in this appeal c.a. number 278/78 however the respondents companyts in this companyrt will be borne by the appellant in terms of this companyrts order dated 10-2-78 in s.l.p.

Prafulla C. Pant,J. Leave granted. This appeal is directed against order dated 16.09.2015, passed by the High Court of Judicature at Calcutta in GA No. 2998 of 2015 in CS No. 2 of 2015 , whereby said Court has rejected the application moved under Section 5 read with Section 8 of the Arbitration and Conciliation Act, 1996, to get the dispute referred to arbitral tribunal. Brief facts of the case are that appellant Greaves Cotton are manufacturers of, inter alia, diesel engines. Respondent United Machinery and Appliances are manufacturers of diesel generator sets. An agreement companytaining arbitration clause was executed between them for supply of diesel engines by the appellant to the respondent for using the same in the diesel gensets. Arbitration clause companytained in Article 10.1 of agreement dated 02.07.2007 companyy Annexure P-1 reads as under - 10.1 Any dispute or difference whatsoever arising between the parties out of or relating to the companystruction, meaning, scope, operation or effect of this Agreement or the validity or the breach thereof shall be referred to a Sole Arbitrator to be appointed by Greaves. The decision of the Arbitrator shall be final and binding upon the parties. The venue of arbitration shall be Mumbai. The arbitration proceedings shall, in all other aspects, be governed by the provisions of the Arbitration and Conciliation Act, 1996 or any subsequent statutory enactment in place thereof. The plaintiff-respondent filed civil suit CS No. 2 of 2015 seeking decree for an amount of Rs.4,92,76,854/- towards the loss and damages suffered by it on account of alleged breach of companytract on the part of defendantappellant. The High Court, in its original side, issued summons in the suit on 06.01.2015 to the appellant. On the other hand, the appellant sent companymunication to the respondent claiming that it was the respondent who has to pay outstanding dues of Rs.1,04,53,103/- to the appellant. The appellant, in response to the summons, on 07.07.2015 moved an application companyy Annexure P-6 before the High Court seeking extension of time for eight weeks to file written statement and invoked the arbitration clause companytained in the agreement dated 02.07.2007 by sending a letter dated 08.07.2015 companyy Annexure P-7 to the respondent, in response to which, vide companymunication dated 13.07.2015 companyy Annexure P-7 , it denied the claim of the appellant, and objected to invocation of arbitration clause on the ground of pendency of civil suit before the High Court. Thereafter, the appellant moved Application GA No. 2998 of 2015 companyy Annexure P-10 under Section 5 read with Section 8 of the Arbitration and Conciliation Act, 1996 for short the 1996 Act , in the suit seeking reference of the disputes between the parties forming the subject-matter of the suit, for arbitration, which is rejected by the High Court on the ground that the appellant has, by moving application for extension of time to file written statement, waived its right to seek arbitration. Hence, this appeal through special leave. We have heard learned companynsel for the parties. Before further discussion, it is just and proper to refer to relevant provisions of law applicable to the case. Section 5 of the 1996 Act provides that numberwithstanding anything companytained in any other law for the time being in force, in matters governed by Part I, numberjudicial authority shall intervene except where so provided in the said Part of the Act. Subsection 1 of Section 8 of the 1996 Act, as it existed prior to 23.10.2015, provided that a judicial authority before which an action is brought in a matter which is the subject of an arbitration shall, if a party so applies number later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The issue before us for companysideration is whether filing of an application for extension of time to file written statement before a judicial authority companystitutes submitting first statement on the substance of the dispute or number. For appreciating the intention of the Legislature, it is necessary for us to examine the change in law brought about by the 1996 Act. In Manna Lal Kedia and ors. v. State of Bihar and ors.1, companyparing the provisions companytained in Section 34 of the Arbitration Act, 1940 and Section 8 of the 1996 Act, High Court of Patna has opined as follows - In terms of the Section 34 of the old Act a party was required to apply for reference of the dispute to the arbitrator before filing written statement or taking any other step in the proceeding. The words or taking any other step were interpreted to include even application for adjournment, for filing written statement. This obviously created anomalies, number only frustrating the objects of arbitration but also resulting in injustice in many cases. In order to bring about change in this regard in the New Act in Section 8 1 , provision has been made to the effect that the party intending to go in for arbitration must do so in his first statement on the substance of the dispute and number later than that. In other words, only if in the first statement on the substance of the dispute he does number make such prayer that he is debarred from making that prayer later. Section 8 1 of the New Act is, thus, an Improvement upon the provisions of Section 34 of the old Act. In Rashtriya Ispat Nigam Ltd. and another v. Verma Transport Co.2, interpreting the expression first statement on the substance of the dispute, this Court has held as under - The expression first statement on the substance of the dispute companytained in Section 8 1 of the 1996 Act must be companytradistinguished with the expression written statement. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the companyrt. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or number, if number, his application under Section 8 of the 1996 Act, may number be held wholly unmaintainable This Court in Rashtriya Ispat Nigam Ltd. supra further held as under - Waiver of a right on the part of a defendant to the lis must be gathered from the fact situation obtained in each case. In the instant case, the companyrt had already passed an ad interim ex parte injunction. The appellants were bound to respond to the numberice issued by the Court. While doing so, they raised a specific plea of bar of the suit in view of the existence of an arbitration agreement. Having regard to the provisions of the Act, they had, thus, shown their unequivocal intention to question the maintainability of the suit on the aforementioned ground.

BHARUCHA, J. This is an appeal against the judgment and order of the Customs, Excise and Gold Control Appellate Tribunal and it companycerns and assessment of project imports for the purposes of Customs duty. Prior to the introduction of Item 72A in the earlier Custom Tariff, Individual imports, Though intended for a single project, were separately assessed to Customs duty, To obviate the inconveniences that resulted, the facility of project imports was introduced and it required that the companytract relating to the project import should be registered. The Project Imports Registration of Contract Regulations, 1964, were introduced as a companysequence. They provide that every importer claiming assessment of articles falling under the relevant entry, being Heading 84.66 of the present Customs Tariff, should apply to appropriate officer of Customs at the port where the goods are t be imported for registration of his companytract. The application in that behalf must specify such other particulars as may be companysidered necessary by the Appropriate Officer for the purposes of assessment under the said Heading. The appellants entered into a companytract on 19th. December, 1978, with companyporations doing business in the United Stated of America in the style of Hercofina to purchase manufacturing equipment, apparatus, machinery, including spare parts and accessories, companyprised in Hercofinas plant at Burlington, New Jersey, USA, for manufacture of Dimethyl Terephthlate DMT at the price of US 10,000,000,00 US ten million . The appellants applied for registration of the said companytract under the Project Import Registration of Contract Regulations 1965, hereinafter called the said Regulations . On 11th. April, 1979, The appellants were informed by the under Secretary to the Government of India in the Department of Industrial Development, Ministry of Industry that the Government had approved the import by the appellants of the aforesaid capital goods for the production of DMT for the CIF value of US 17 million. It was numbered in the said letter that the appellants would be incurring as dismantling charges the companyt of US 5.50 million for which necessary clearance from the Reserve Bank should be obtained. On 21st. may, 1979, the Deputy Secretary in the Ministry of Petroleum, Chemicals and Fertilizers required the appellants to furnish a certificate from a firm of Chartered Engineers regarding the soundness and reliability of the aforesaid plant before incurring any expenditure for its purchase. On 1st. August, 1981, the Under Secretary in the Department of Economic Affairs in the Ministry of Finance informed the Reserve Bank that the Government had approved the procurement of capital goods, technical assistance, etc., in companynection with the DMT project of the appellants thus Value Import of Capital Goods US 17.00 million ii Overseas dismantling charge etc. US 5.5 million iii Fee for Technology Technical US 2.5 million Assistance. On 24th. August, 1982, the Assistant Collector of Customs, Bombay, informed the appellants that the said companytract had been registered and that spare to the extent of 10 percent of the value of the main machinery were eligible for the companycessional rate of assessment under Heading 84.66 ii . On 30th September, 1982, the Reserve Bank informed the appellants that it had agreed to the expenditure by the appellants of US 5.5 million towards dismantling and other charges in respect of the import of aforesaid plant, which charges were number required to be endorsed on the import licence issued for that import. On 8th October, 1982, the Joint Controller of Imports and exports wrote to the Collector of Customs, Bombay, asking the Collector number to debit the said dismantling charges to the face value of the said import licence. It was companytended by the appellants before the Tribunal that there had been a pre-assessment of the said plant and that, therefore, the Collector of Customs was in error in applying the provision of Section 14 of the Customs Act to the valuation of the said plant fr the purposes of Customs duty. The Tribunal did number accept the argument that the registration of the said companytract by the Customs in terms of the said Regulations amounted to pre-assessment of the value of the said plant. It accepted the argument on behalf of the Revenue that there had only been a provisional assessment and it was open to the Collector to value the said plant on the basis of Section 14. Before us it was accepted that there had been only a provisional assessment at the stage when the said companytract was registered under the said Regulations, but it was submitted that once the value of the said plant was determined at US 4 17 million and the said companytract was registered under the said Regulation read with Heading 84.66, then, for the purposes of the final assessment, the value of the said plant had to be taken to be the value that had been so determined and it was open to the Customs authorities number to accept that value only if there was material to indicate that it was arrived at on account of some error or a particular item fell outside the scope of the project import. We find it difficult to accept the submission. Once it is accepted that there is number more than a provisional assessment at the stage when the companytract is registered under the said Regulations, it is open to the Customs authorities to make a final assessment taking into account all factors that are relevant thereto, and they are number inhibited by reason of the registration of the companytract under the said Regulations. The question number is whether the Customs authorities have taken relevant factors into account in making the final assessment of the said plant. The adjudicating authority added the following in making the final assessment of the value of the said plant, and was upheld by the Tribunal US Inspection dismantling packing and forwarding 3847621 Vendor inspection 339253 Insulation removal 691981 Insurance in USA 139365 Tata Incorporated charges 217500 Reimbursement to Tata Incorporated for misc. Expenses such as equivalent transport, companyying, telephone, telex, postage legal expenditure. 265018 ---------------------- 5500738 --------------------- After some debate, learned companynsel for the appellants fairly stated that he companyld number companytest the addition of dismantling, packing and forwarding charges in item number 1 above and insurance in USA, being item number 4 above, because these expenses arose upon the terms of the said companytract. The amount relating to inspection in item number.1 above is US 1.048 million. It was submitted by learned companynsel for the appellants that these inspection charge companyld number be included in the assessable value the said plant as the inspection was optional. It did number flow from the terms of the said companytract number did it enhance the value of the said plant. It was number needed to incurred for dismantling the said plant and making it ready for transport. It was only for determining what parts of the said plant needed repair. The Tribunal had been error in emphasising clause 9 of the said companytract in holding that these inspection charges were includible for the purposes of arriving at the assessable value of the said plant. Clause 9 of the said companytract records that independent certification of the companydition of the said plant was required to enable the appellants to obtain an import licence for it. It was, therefore, agree that the appellants would engage. in companysulation with Hercofina, and engineering companytractor, at the appellants expense, to inspect the major pieces of the said plant and issue a certificate in this behalf. It seems to us clear that this inspection, carried out by Catalytic Inc. was pursuant to the aforementioned term of the said companytract and the expenditure incurred i that behalf was rightly held by the Tribunal to flow thereout. Insofar as Vendor inspection item 2 above is companycerned, it appears that it was carried out by the original supplier of the said plant. It was number required to be incurred for the purposes of dismantling the said plant number for making it ready for being transported. There is numbermaterial shown to us from the record that suggests the companytrary. we are, hence, of the view that the expenditure on this inspection should number have been taken into account for the purposes of arriving at the assessable value of the said plant. Learned companynsel for the appellants submitted that the expenditure incurred on insulation removal Item 3 above should also number have been taken into account for the purposes of arriving at the assessable value of the said plant. Under the terms of clause 4 of the said companytract it was the obligation of the appellants, at their own companyt and expense, to make all arrangements and perform all work, themselves or through agents or companytractors of their choice, necessary to effect dismantling, packing, removal an d shipment of the said plant from Burlington, New Jersey. The said plant as installed was insulated by asbestos. Environmental laws in the U.S.A. required by asbestos insulation that was removed from the said plant in New Jersey to enable the said plant to be transported had to be buried at an approved site. It was, therefore, that the appellants had to engage the services of a specialist companytractor who came to the site with protective devices and vehicles to remove the asbestos insulation and transport it to the burial site. Learned companynsel for the appellants submitted that, while the said companytract required the appellants to dismantle the said plant and, therefore, to remove the asbestos insulation, it did number require the appellants to bury the asbestos. We must proceed upon the assumption that the said companytract required the appellants to carry out their obligations thereunder in a lawful manner. It was, therefore, implicit that the appellants should companyform to the law that required to removed asbestos insulation of the said plant to be buried. The obligation in this behalf flowed out of the said companytract and the expenditure incurred thereon was rightly taken into account in determining the assessable value of the plant. The appellants had entered into a companytract with M s. Tata Projects for providing services in India with regard to companystruction of the said plant. They had agreed to pay the expenses in this behalf actually incurred by M s. Tata Inc. in the U.S.A. and their fees. Accordingly, the appellants had paid the fees of M s. Tata Inc. item 5 above and reimbursed them for the expenditure which they had actually incurred item 6 above . Learned companynsel for the appellants submitted that the payment of the fees of M s. Tata Inc. was payment for rendering a service and companyld number be taken into account in arriving at the value of the said plant. Attention was drawn to the judgment of this Court in Apollo Tyres Ltd. vs. Collector of Customs, 1997 89 E.L.T. 7 to which one of us was party where it was held that the companymission or remuneration payable to a purchasing agent did number enhance the value of the items purchased. The same reasoning, it was submitted, applied to the fees of M s. Tata Inc. and the reimbursement to them of actual expenses. Learned companynsel for the Revenue, Fairly, did number dispute this. To summarise, only the additions of US 33953, 217500 and 265018, being the additions on account of Vendor Inspection item 2 , Tata Incorporated charges item 5 and Reimbursement to Tata Incorporated item 6 are number sustained. The letter dated 24th August, 1982, written by the Assistant Collector of Customs to the appellants intimating to them that the said companytract had been registered, stated that spares to the extent of 10 per cent of the value of the main machinery were eligible for the companycessional rate of assessment under Item 84.66.

SHIVA KIRTI SINGH, J. Heard learned companynsel for the appellant and learned companynsel for the respondent-Insurance Company. The appellant was a victim of road accident on 27th July, 1997. On account of several serious injuries including amputation of companyplete left hand, severe injuries in head, dislocation of bones in hip and both knees and severe injuries in foot, the Doctor assessed his disability at 100. The appellant preferred a claim petition before the Motor Accidents Claims Tribunal at Chennai and sought companypensation of Rs.26,00,000/- rupees twenty six lacs . The Claims Tribunal allowed a claim for Rs.14,20,000/- rupees fourteen lacs and twenty thousand only vide judgment dated 9.8.2000 rendered in M.C.O.P. No. 3365 of 1997. The claim allowed on different heads includes Loss of income for one year as Rs.60,000/- ii Special diet and transportation-Rs.50,000/- iii Medical expenses Rs.50,000/- iv Pain and suffering Rs.2,00,000/- Permanent disability Rs.4,00,000/- vi Loss of future earning Rs.6,60,000/- The Insurance Company preferred appeal before the High Court at Madras and by the order under appeal dated 13.11.2006 passed in C.M.A. Nos. 1963 of 2000 and 12 of 2001 the High Court, while maintaining the Award under the first three heads, reduced the amount of Rs.2,00,000/- for pain and suffering to Rs.1,00,000/-, Rs.4,00,000/- for permanent disability to Rs.3,00,000/- and Rs.6,60,000/- as loss of future earning to Rs.3,96,000/-. As a result of aforesaid reduction, the appellant has been held entitled only to Rs.9,56,000/- rupees nine lacs and fifty six thousand only in place of Rs.14,20,000/- rupees fourteen lacs and twenty thousands only . Assailing the order under appeal on account of reduction of companypensation under the three heads numbered above, learned companynsel for the appellant has taken us through the materials on record including the judgment of the Tribunal and the judgment of the High Court under appeal. It has been shown that the Tribunal has discussed all the available materials in detail for companying to a companyent and well reasoned finding for calculating the loss of future earning on the basis of monthly income of Rs.5,000/- whereas the High Court reduced the monthly income to Rs.3,000/- without specifying any reasons for reversing the finding of the Tribunal. The Tribunal companysidered oral evidence of the claimant as well as documents such as Ext. P.4 and Ext. P.5 showing that the applicant had experience of working as Electrician and was employed as such. In the light of all the relevant materials the Tribunal assessed the earning capacity of the appellant as Rs.5,000/- p.m. and accordingly allowed a sum of Rs.60,000/- as loss of earning capacity for a period of one year and by adopting the multiplier of 11 allowed Rs.6,60,000/- as loss of future earning. The High Court did number interfere with the multiplier and as indicated above, without good reasons treated the monthly income of the appellant to be Rs.3,000/- in place of Rs.5,000/-.

The appellant, the aggrieved party in these two special appeals, was granted leave limited to the question as to whether the learned Single Judge of the High Court was justified in passing strictures against the appellant. On merit of the matter, the fate of the cases stands sealed. The reference to the appellant in the judgment of the learned Single Judge is in two capacities i as a partyrespondent companynected with the merits of the matter and ii his brooding presence as a Minister of the time to have influenced the decision-making of the Land Tribunal, it being a land reforms matter. The learned Single Judge in paragraph 4 of his judgment observed as follows But, in this case it appears to me that the regular procedure prescribed by the Land Reforms Act for companyferring occopation of the lands immediately prior to 1.8.1974 had been abused by the Chairman and the members of the Tribunal to casue wilful loss to the petitioners and they did number have the companyrage of their companyvictions to stand up to the machinations of respondent - 3 the appellant herein who was admittedly a Minister of the State Government at the relevant time. emphasis supplied On appeal to the Division Bench of the High Court at the instance of the appellant, the Division Bench in para 31 of its judgment observed as follows As earlier observed, we do number find any direct evidence to hold that the impugned order was passed by the Tribunal at the behest of the appellant who exercised his influence on them. But the facts and circumstances of the case leave numbermanner of doubt that after the passing of a decree in the partition suit, a determined effort which was within the knowledge of the appellant, was made to defeat the claim of Naikwadi family, which in our view was wholly unjustified. The Bench further observed in paragraph 37 as follows Having arrived at the aforesaid companyclusion, one question still remains to be answered i.e., whether respondent - 3 appellant exerted his extra companystitutional power and influence on the members of the Tribunal who yielded - to such influence. On this aspect, it was very fairly companyceded by Mr. Bannurmath, learned companynsel for the writ petitioners, that there was numberevidence to prove any direct link between the appellant and members of the Tribunal. Even we, after going through all the relevant evidence find that there is numberpositive direct evidence to prove the exervising of the extra companystitutional power and influence on the members of the Tribunal. That being so, the next question that arises for companysideration whether there is any circumstantial evidence on the basis of which such an inference can be drawn. In our view on the facts and circumstances of this case, it would be too much stretching to hold that to procure the impugned order such an influence was exerted by the appellant respondent-3 himself. The facts of the case do reveal the revival of interest of respondents - 3 in the land in dispute and the determined effort of Smt. Aruna Devi to deny the possession of the Naikwadi family and defeat their claim. But these facts plus the fact that respondent - 3 was a Minister in the State cabinet by themselves, in our opinion do number lead to a positive companyclusion that the impugned order is the outcome of the exercise of extracompanystitutional power and influence on the members of the Tribunal, yet suspicion is left unerased that the impugned order may have been passed to please respondent-3 or at his behest. We have been taken through the other relevant portions of the judgments of the learned Single Judge as well as that of the Division Bench which reflect on the companyduct of the appellant in his capacity as a litigant, for it was his lands which were being subjected to the provisions of the relevant Land Reforms Act. His companyduct as a litigant companyld definitely be companymented upon by the companyrts and that part of the order would have to sustain, for expunction of remarks cannot be sought by a litigant if those were legitimately made from the companyclusions and inferences drawn by a companyrt. But, here we have his name as a Minister brought in to cast a shadow on the merits of the matters and this is a pinch unbearable to the appellant. It is evident from the aforeextracted passage from the judgment of the learned Single Judge that the spelled out a direct nexus between the companyduct of the members of the Tribunal and the appellant being a Minister at the relevant time. The Division Bench however companyld number sustain that view of the Single Bench as is evident from the two aforeextracted passages from its judgment. It has been viewed that there was neither direct number circumstantial evidence to prove any nexus between the appellant and the members of the tribunal, The finding was dressed down to be described as an usnerased suspicion that the impugned order may have been passed to please respondent No.3 the appellant or at his behest. On such infirm and shaky finding, we are number prepared to sustain the remarks passed by the High Court against the appellant as a Minister. In our view, the High Court at both the stages was in error in linking or dragging the appellants name as a Minister with the deliberations of the Tribunal.

R. Krishna Iyer, J The appellant, Municipal Corporation of Delhi, has by special leave companye up in appeal attacking the decree of the High Court which affirmed the companycurrent judgments of the Courts below declaring the order of dismissal of the respondent void. The facts so far as they are relevant for this appeal may be briefly set out. The respondent was a Sewer Inspector appointed in 1958 by the Commissioner of the Municipal Corporation. In 1961, he was suspended for alleged delinquency. This was followed by a departmental disciplinary enquiry which resulted in his dismissal by the Deputy Commissioner on October 25, 1962. Of companyrse, this order had been preceded by a regular enquiry after giving an opportunity to the delinquent officer to be heard. After the dismissal order by the Deputy Commissioner, an appeal was carried to the Commissioner by the respondent but it proved fruitless because the Commissioner after examining the merits of the matter companycurred in the companyclusion regarding the guilt and punishment. Thereafter, the respondent brought a suit challenging the validity of the order of dismissal and for a declaration that he is deemed to have companytinued in service despite the dismissal. He succeeded in the trial Court and the appeals by the Corporation were all dismissed. The main ground on which the order of dismissal was set aside was that the appointing authority was the Commissioner while the dismissing authority was the Deputy Commissioner. This flies in the fact of the proviso to Section 95 1 of the Delhi Municipal Corporation Act, 1957 which reads thus Provided that numbersuch officer or other employee as aforsaid shall be reduced in rank, companypulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed. xx xx xx We are satisfied that in the light of the decision reported in Management D.T.U. v. B.B.L. Hajelay 1973-2 S.C.R. 114 the High Courts view is companyrect. The essence of the matter is the station or rank of the authority empowered to dismiss and the officer subjected to dismissal. That rank cannot be delegated and therefore the delegatee if he is subordinate, cannot arrogate to himself the power to dismiss which the original appointing authority enjoyed. It follows that the order of dismissal in the present case is bad. This does number bring the story to end. After all an enquiry had been companyducted in accordance with the rules and the canons of natural justice and an enquiry report had been submitted. The illegality crept in when the Deputy Commissioner decided. From then on, what was done was also illegal. We think it companyrect in law and in accordance with justice to hold that the Commissioner will be entitled to companysider the enquiry report with an open mind and reach his own companyclusion as to the culpability or otherwise of the respondent. It is numberlonger necessary to hold a fresh enquiry regarding the alleged misconduct since the record is companyplete upto that stage. There is numberneed to reopen that part of the proceeding. Of companyrse, when making representations before the Commissioner it may well be open to the respondent to urge any infirmities about the enquiry he may like to press and the Commissioner will give due companysideration to it.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 260 of 1968. Appeal by special leave from the judgment and order dated October 18, 1968 of the Bombay High Court in Criminal Appeal No. 1161 of 1966. S. R. Chari, S. S. Khanduja and Maya Rao, for the appellant. C. Bhandare and S. P. Nayar, for respondent No. 1. M. Tarkunde, Janendra Lal and B. R. Agarwala, for respondent No. 2. The Judgment of the Court was delivered by Jaganmohan Reddy, J. This appeal is by special leave against the order of the High Court of Bombay dated the 18th October 1968 allowing the oral application of the learned advocate for the respondent for the amendment of the charge of terms of the draft submitted by him and directing the Chief Presidency Magistrate to assign the case to some companyrt for holding a new trial in respect of the amended charge. This order was made in the following circumstances The appellant was one of the partners of a firm Chandulal Kanji Co. along with his brother Chandulal K. Mehta. By and under an agreement called the Packing Credit Agreement entered into between the firm and the second respondent, the Union Bank of India, the appellant obtained 75 per cent of the value of groundnut extraction to be purchased by the firm and exported to the United kingdom and other European companyntries from the Bank on the companydition that immediately after the purchase of the goods and its export the shipping documents would be sent to it. This arrangement required the firm while sending a letter requesting the credit to be given to it, to enclose the companytract of sale of groundnut extraction entered into between it and the foreign firm. On receipt of this letter and the agreement. the bank would advance 75 per cent of the money required to purchase the groundnut extraction. After the amount was received, goods had to be purchased from the mills and shipped for export and the shipping documents sent to the Bank within a month from the date of such advance. It appears that under this arrangement the second respondent Bank had advanced under the Cash Credit Agreement and the Packing Credit Agreement nearly rupees 4 lacs on several dates the first of which was March 27, 1965 which was for the purchase of 200 tons of groundnut extraction and with which we are number companycerned. The Cash Credit Agreement, the Packing Credit Agreement and the letter requesting the advance of Rs. 60,000/- were all signed on the same date. The advance, as requested, was also made on the 27th March 1965. Goods were purchased but companyld number be shipped within a month from the date of the advance because, as stated in the letter of the appellant dated the 27th April, due to change in the schedule of departure of the ships it was number possible to export the goods on the 24th or 25th March as originally planned as such he undertook to ship the goods a week thereafter. On the same day, the appellant further sent a declaration that the firm had purchased 300 tons from the advance made to it and is holding the stock. On the 6th May the Bank requested the firm to forward the shipping documents in respect of the seven agreements of which one related to the agreement of 27th March. When the shipping documents were number sent to it in companyformity with the several documents the bank made certain enquiries from its branch in Veraval, a port in Kathiawar and received certain information as to the dates on which the various quantities were exported and the ships in which they were sent. As the shipping documents were number sent to the second respondent as required under the agreements entered into with it, it again called on the firm on the 24th May to hand over the documents to it in respect of the groundnut exported. When this request was number companyplied with, it filed a companyplaint against the appellant who alone was the active partner of the firm, in the companyrt of the Presidency Magistrate on the 26th May alleging against him misappropriation of moneys and goods companytrary to the agreement. In support of this companyplaint the manager of the Bank gave evidence and at the stage of framing the charge the Magistrate heard the lawyers for both sides. He framed only one charge against the accused for misappropriation of the moneys under S. 406 I.P.C. advanced by the Bank in respect of which the Magistrate ultimately companyvicted him on 31st August 1966 and sentenced him to 18 months R.I. Against this companyviction the appellant appealed to the High Court and when the case came up for hearing and had been argued for a companysiderable length, the advocate for the companyplainant, the second respondent, appears to have made an oral application for amending the charge framed by the Magistrate as per the draft handed over to the learned Judge which was to be added as an alternative charge to the charge already framed. It was companytended that the Magistrate had framed a charge merely in respect of the entrustment of the moneys that were advanced by the Bank to the appellant but even so the evidence had been led on behalf of the companyplainant at the trial to show that apart from the money with which the appellant was said to have been entrusted with, even the goods that were purchased by the appellant with the moneys so advanced had also been entrusted to him and which he had agreed to hold on account of the Bank. This prayer was opposed by the learned advocate for the appellant who companytended that it was open to the companyplainant to have urged the Magistrate at the time when the charge was being framed to have an alternate charge similar to the one number required to be added. In fact it was stated by the learned advocate that the charge was actually framed by the Magistrate after substantial evidence of the companyplainant had been recorded by him and after the companyplainants advocate in the lower companyrt had discussions on the question of the framing of charge, but in spite of it only one charge was framed against the appellant for breach of trust in respect of moneys said to have been entrusted to the appellant by the Bank. The charge relating to goods was omitted and number framed. It was also pointed out that the altering or amending of charge at this stage would really amount to the framing of a totally new charge in regard to altogether a new subject matter, namely, alleged entrustment of goods, which if permitted would prejudice the accused in his defence. The learned Judge, however, after hearing these arguments thought that a charge which would include entrustment of moneys as well as entrustment of goods ought to have been framed by the Magistrate but having regard to the materials which have already been brought on record by the companyplainant at the trial he thought that it was desirable in the interest of justice to allow the amendment. The following directions given by the learned Judge are relevant for the determination of the companytention urged before us I direct that the charge as framed by the learned Magistrate be altered and amended in terms of the draft amendment submitted and send the case back for a new trial on this amended charge so as to enable the appellant to have full opportunity to meet this case, till which time this appeal is kept pending. I direct that the papers be sent to the learned Chief Presidency Magistrate forthwith and the learned Chief Presidency Magistrate is further directed to assign the case to some Court for holding the new trial. I further direct that the new trial should be expeditiously companypleted and preferably within two months from the receipt of the papers by the Court to which the case would be assigned by the learned Chief Presidency Magistrate. The other two appeals being Criminal Appeals Nos. 1162 and 1163 of 1966 should also be adjourned as part-heard matters and to be put up along with Criminal Appeal No. 1161 of 1966 after the record and the proceedings of the new trial is received by this Court. Mr. Chari on behalf of the appellant companystruing the above order as a direction for a new trial without disposing of the appeal companytends that it is unwarranted, unfair, inequitable and unsupported by any of the provisions of the Code of Criminal Procedure. The learned advocate further submits that it is grossly prejudicial to the accused, for the prosecution to wait till the end of the trial and then say that the charge should be amended. It companyld have easily insisted at the stage of framing the charge itself that an additional charge should be framed and if the prayer was number accepted it companyld have companye in revision. The, prosecution having let the trial proceed to the end without insisting on any additional charge cannot number before an appellate companyrt ask for its amendment number should the said amendment be permitted. Secondly, he submits that the learned Judge did number companysider the question whether there was or was number a prima facie case of entrustment of goods. In fact it is the companytention that the cumulative effect of the agreement and the transaction between the appellant and the second respondent Bank does number disclose entrustment of moneys to sustain the charge for which the appellant was companyvicted and if there can be numberquestion of any entrustment of moneys there can be numberentrustment of goods. The learned Judge, it is stated, should have adverted his mind to this aspect of the case before he permitted the framing of additional charge and directed the Magistrate to hold a new trial. In fact the learned advocate urged that before the Magistrate the second respondents advocate had specifically stated that the trial should proceed only on one charge relating to entrustment of moneys as a test case and having taken up this position numberprayer for the addition of another charge can be made or ought to have been granted. But Shri Tarkunde appearing on behalf of the second respondent denies that there was any such submission and companytends that in fact Tulzapurkar J. did number direct a new trial as suggested by the advocate on behalf of the appellant though the use of the words new trial has unhappily given rise to such a companytention. What in fact the learned Judge did was to send the case back to the Magistrate to enable the appellant to have full opportunity to meet the case and return the record to the companyrt to enable it to dispose of the appeal on both the charges. The learned advocate submits that there is numberillegality in the order of the learned Judge because what the appellate companyrt companyld have done itself it is directing the Magistrate to do, namely, to give an opportunity to the accused to call the prosecution witnesses if he so desires, obtain his statement under S. 342 in respect of the additional charge and to allow him to record any evidence on his behalf if he is so desirous. It appears to us that the companytention of Shri Tarkunde is amply justified by the following observations of the learned Judge allowing the application for amendment made by Mr. Patel on behalf of the second respondent I have therefore asked Mr. Khambata as to whether the appellant would like to have an opportunity of a new trial where he companyld meet this case and Mr. Khambata has stated that the proper companyrse for the companyrt, after allowing amendment of the charge in the manner sought by the companyplainant, would be to order a new trial. Mr. Patel for the companyplainant, however, has stated before me that even during such new trial that would be ordered by the companyrt, numberfresh evidence would be led on behalf of the companyplainant and the companyplainant would be relying upon the self same material that has already been brought on record by the companyplainant at the trial, which is already companycluded. Mr. Khambata also urged before me that if I were inclined to allow the application of Mr. Patel, I should dispose of the appeal which deals with the alleged entrustment of the monies and either accept the findings or set aside the findings and thereafter order a new trial in regard to the alleged entrustment of the goods. I feel that it would be desirable and proper to keep this pending till the opportunity that is being given to the appellant-accused No. 2 to meet this new case is fully availed of by him and the record of such new trial is received by this companyrt. I accordingly allow the application of Mr. Patel for amendment of the charge in terms of the draft submitted by him. From the above observations it would be clear that the learned Judge did number intend that the trial should be a new trial in the sense that the Magistrate would record the evidence afresh, see whether there, was a prima facie case for framing a charge and if there was, to frame a charge then permit the companyplainant to lead evidence, record the statement of the accused under s. 342 and adduce evidence on his behalf after which he would pronounce judgment of companyviction or acquittal. If he had so intended and had directed a totally new trial as is alleged, he companyld number have rejected the companytention of Shri Khambata for the appellant that he should dispose of the appeal and order a new trial on the additional charge number would he have directed that the appeal should be kept pending till the record of the new trial is received back in his companyrt which companyld only be after giving the accused appellant an opportunity to meet the case on the additional charge. On this interpretation of the order the question is whether what has been directed by the learned Judge is in companyformity with the provisions of the Code of Criminal Procedure. In our view the Criminal Procedure Code gives ample power to the companyrts to alter or amend a charge whether by the trial companyrt or by the appellate companyrt provided that the accused has number to face a charge for a new offence or is number prejudiced either by keeping him in the dark about that charge or in number giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him. The power of the appellate companyrt is set out in section 423 Cr. P. C. and invests, it with very wide powers. A particular reference may be made to clause d of sub-section 1 as empowering it even to make any amendment or any companysequential or incidental order that may be just or proper. Apart from this power of the appellate Court to alter or amend a charge, section 535 Cr. C. further provides that numberfinding or sentence pronounced or passed shall be deemed to be invalid merely on the ground that numbercharge has been framed unless the Court of appeal or revision thinks that the omission to do so has occasioned failure of justice and if in the opinion of any of these companyrts a failure of justice has been occasioned by an omission to frame a charge, it shall order a charge to be framed and direct that the trial be recommenced from the point immediately after the framing of the charge. The wide and extensive power which an appellate or revisional companyrt can exercise in this regard has also the support of the Privy Council. Lord Porter who delivered the opinion of the Judicial Committee in Thakar Sahab v. Emperor 1 had occasion to point out that while the history of the growth of Criminal Law in England its line of development and the technicalities companysequent thereon would have made it more difficult and may be impossible to justify a variation of the charge, Indian Law was subject to numbersuch limitation but is governed solely by the Penal Code and Criminal Procedure Code. In that case the Privy Council was called on to decide whether the alteration of the charge and the companyviction from one of abetment of forgery by known person or persons to abetment of forgery by an unknown person or persons vitiated the companyviction. It was held that it did number, because an Appellate Court had wide powers companyferred upon it by section 423 and in particular by subsection 1 a of that section, which is always of companyrse subject to the limitation that numbercourse should be taken by reason of which the accused may be prejudiced either because he 1 1943 P.C.192. is number fully aware of the charge made or is number given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred. In this case Shri Chari companytends that 1 what the High Court should have done if it found that interest of justice required it either to have recorded the evidence itself or to have asked the trial companyrt to record it and send it back, but it cannot refuse to give a finding on the charge for which he was companyvicted and 2 that the prosecution having proceeded with the trial on the charge framed and number having asked for an amendment at that stage cannot ask the appellate companyrt to amend or add to the charge. It appears to us that both these companytentions are based on a misreading of the order of the High Court. As already pointed out the learned Judge of the High Court did number intend number did he direct a new trial in the sense that it is companytended he had done. There was in fact numberretrial directed, but only an opportunity was given to the accused to safeguard himself against any prejudice by giving him an opportunity to recall any witnesses and adduce any evidence on his behalf. The appellant has also understood the order number as a retrial is clear from ground f of the Special Leave Petition filed before us. It is therefore number necessary for us to examine the scope and extent of the power or circumstances in which a retrial should be ordered. The companyplainants Advocate Shri Tarkunde in fact said and even number submits before is that he does number want to lead any evidence and would be satisfied on the same evidence to sustain a companyviction on the amended charge, number does the alternative charge number framed requires him to answer a charge against him of a new offence which would cause prejudice. The offence With which he is number charged alternatively is the same namely under Section 406 but as the entire transaction was one and indivisible he is number only required to answer the charge of misappropriation of money but in the alternative misappropriation of goods which the companyplainant Bank companytends became theirs as soon as the accused purchased them with the moneys it advanced. In our view numberprejudice is caused or is likely to be caused to the accused by the amendment of the charge as directed by the High Court. It was again companytended that the High Court ought to have companysidered whether there was a prima facie case against the accused to justify the framing of the amended charge particularly when it took the view that the first charge companyld number be sustained. We do number think the learned Judge expressed any view as to the maintainability or otherwise of the companyviction, but thought there should have also been framed an alternate charge in respect of the goods. It is true that the companyrt did number give any reasons as to why it thinks there was a prima facie case, but being an appellate companyrt perhaps it was anxious to avoid giving an impression that it has taken any particular view on the evidence. The accused raised numberground on this account in the Special Leave Petition, number do we think on this account we should interfere with the judicial exercise of discretion of the learned Judge in framing the charge and in giving the accused an opportunity to recall any witnesses or adduce fresh evidence on his behalf. If numberobjection companyld be taken to the trial Court in framing the original charge it is difficult to see how an objection can be taken at this stage to the framing of an alternate charge on the same allegation in the companyplaint.

B. Majmudar, J. This appeal by special leave to appeal granted under Article 136 of the Constitution of India brings in challenge the judgment and order rendered by the High Court of Bombay at Nagpur in Second Appeal No. 310 of 1960. By the impugned judgment and order the learned Single Judge of the High Court dismissed the appellant-plaintiffs Second Appeal and companyfirmed the decree of dismissal of his suit for partition as rendered by the Trial Court and as companyfirmed by the First Appellate Court. We shall refer to the appellant as plaintiff and respondents 1 to 7, heirs of original defendant, as defendants for the sake of companyvenience in the latter part of this judgment. The plaintiffs suit against the original defendant Prayag who died pending the litigation was based on the ground that defendant was his uncle. That his father Ram Prasad and the defendant Prayag were sons of one Balbhaddar Teli. That plaintiffs father and the defendant had joint interest in the suit properties which were inherited by their father from his ancestors. That as there was numberpartition of these properties during the lifetime of his father on the one hand and defendant on the other he had acquired one half undivided share in these properties along with the defendant who had the other half share. He, therefore, filed a Civil Suit No. 289-A of 1960 in the Court of the Civil Judge Junior Division , Gondia against the defendant for partition and separation of his half share in the properties described in the Schedule attached to the plant and for mesne profits. According to the plaintiff his grandfather Balbhaddar died in or about the year 1911 leaving behind him his two sons Prayag, original defendant, and Ram Prasad, plaintiffs father. Plaintiffs father Ram Prasad died in or about the year 1938 leaving plaintiff Ram Das as his son, daughter Tulsabai and Kusumabai as his widow. Plaintiff was six months old when his father Ram Prasad died. According to the plaintiff as he was minor the properties after death of his father used to be managed by the defendant as Karta of the family. Property was thus in joint possession of the parties. That plaintiff was staying with his mother at Nagpur and defendant used to give his share in the crops every year. After attaining majority he sought for partition and separate possession of his one half share which the defendant refused and hence the aforesaid suit. The defence of the original defendant was there-fold. Firstly it was companytended that plaintiffs mother after death of plaintiffs father Ram Prasad re-married one Ram Charan and before her re-marriage with Ram Charan she gave the plaintiff in adoption to Ram Charan and companysequently plaintiff had ceased to belong to the family of defendant and his deceased father Ram Prasad and companysequently he had numberright, title or interest in the suit properties. The second defence was that in the lifetime of plaintiffs father Ram Prasad there was partition of properties and Ram Prasad was given h s share in companyownership properties and other movables and, therefore, also plaintiff had numberright, title and interest in the suit properties which on partition fell to the exclusive share of original defendant. The third defence was that in any case defendant had become owner of suit properties by adverse possession. After recording evidence the learned Trial Judge came to the companyclusion that all the three defences put forward by the original defendant were worth acceptance. In short the learned Trial judge held that the plaintiff was adopted by his step-father Ram Charan before his re-marriage with plaintiffs mother and, therefore, plaintiff had numberright, title or interest left in the properties of his deceased natural father. It was also held that there was partition between plaintiffs natural father Ram Prasad and the defendant during the formers lifetime and that the plaintiffs father had squandered away the properties which fell to his share and, therefore, also plaintiff had numbershare in the suit properties which had fallen exclusively to the share of the defendant on partition. It was also held that in any case the defendant had become owner of the properties by adverse possession. The plaintiff carried the matter in appeal. The learned Appellate Judge on re-appreciation of evidence came to the companyclusion that there was numberpartition between plaintiffs father on the one hand and the defendant on the other during plaintiffs fathers lifetime and, therefore, the finding of the Trial Court on this issue was reversed. The learned Appellate Judge also held that the defendant had failed to provide his defence that the plaintiff was given in adoption by his mother before her re-marriage with Ram Charan. However the learned Appellate Judge companyfirmed the decree of dismissal of suit on the third ground, namely, that the defendant had become owner of suit properties by adverse possession. Thus out of the three grounds the plaintiff succeeded on two grounds before the Appellate Court but lost on the last ground. The plaintiff carried the matter in Second Appeal being Second Appeal No. 310 of 1969. A learned Single Judge of the High Court agreed with the finding of fact reached by First Appellate Court that there was numberpartition of properties between the plaintiffs natural father on the one hand and the original defendant on the other. However, it was further held that the defendants defence about the adverse possession was number established on record as it was number proved that the defendant had ousted the plaintiff so far as the suit properties were companycerned. Hence the defence of adverse possession failed. Thus out of the three defences which had originally appealed to the Trial Court two defences were held by the High Court to be unsustainable on the evidence on record. However, so far as the finding of adoption in favour of the plaintiff-appellant was companycerned the learned Single Judge of the High Court while allowing the heirs of the original defendant, respondents herein, to support the decree of dismissal as companyfirmed by the First Appellate Court on the finding held against them as per the provisions of Order 41 Rule 22 Code of Civil Procedure CPC for short , took the view that plaintiffs adoption by Ram Charan who subsequently became his step-father was well established and the companytrary finding of the lower Appellate Court was required to be set aside and that is how the Second Appeal was dismissed on the sole ground that the plaintiff was adopted by Ram Charan and had numberlonger remained in the family of this deceased father and uncle, original defendant, and companysequently companyld number claim partition of the properties in question. Mr. Bobde, learned senior companynsel appearing for the appellant vehemently submitted that once the two defences of the original defendant were held to be number sustainable by the learned Single Judge of the High Court his appeal should have been allowed and companyld number have been dismissed by the High Court by interfering with a pure finding of fact reached by the final companyrt of facts on the question of adoption as such as such as exercise was number permissible under Section 100, CPC. In this companynection he invited our attention to two decisions of this Court in the case of Madamanchi Ramappa Anr. v. Muthaluru Bojjappa AIR 1963 SC 1633 and in the case of Bholaram v. Ameerchand 1981 2 SCC 414 It is number well settled that on a question of fact the decision rendered by the lower Appellate Court is final and the High Court in exercise of its jurisdiction under Section 100, CPC cannot interfere with the findings of fact unless these findings are found to be vitiated in law. It is of companyrse true that the Second Appeal of the plaintiff was filed in 1969 and it had to be decided according to the provisions of Section 100, CPC as applicable prior to their substitution by the new Section 100 as brought on the Statute Book by Civil Procedure Code Amendment Act, 1976 meaning thereby that the appellant in Second Appeal had number to show that the findings reached by the lower Appellate Court involved any substantial question of law. Still however it had to be shown that the findings reached by the lower Appellate Court involved any errors of law as laid down by Section 100 1 a , b and c as were applicable prior to 1976. The said provisions as applicable prior to 1976 read as under 100 1 . Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any companyrt subordinate to a High Court on Any of the following grounds, namely a the decision being companytrary to law or to some usage having the force of law b the decision having failed to determine some material issue of law or usage having the force of law c a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. It is also true that Section 103, CPC as then applicable to the facts of the present case prior to 1976 permitted the High Court to determine an issue of fact under circumstances laid dow under the then existing Section 103 which read as under In any second appeal, the High Court may, if the evidence on the record fact necessary for the disposal of the appeal which has number been determined by the lower appellate Court or which has been wrongly determined by such companyrt by reason of any illegality, omission, error or defect such as is referred to in sub-section 1 of section 100. However before the High Court companyld exercise its jurisdiction under Section 100 read with Section 103, CPC applicable at the relevant time in 1969 it had to be shown that the lower Appellate Court had wrongly determined nay question of fact by reason of any illegal omission, error or defect as were referred to in Section 100, CPC. Therefore, it had to be demonstrated that the finding of fact reached by the First Appellate Court was affected by any of the errors as companytemplated by provisions of Section 100 subsection 1 a , b and c , CPC. So far as the facts of the present case are companycerned it has to be numbered that the First Appellate Court had companysidered all the relevant evidence on record and reached a companyclusion that the defendant had failed to establish his defence that the plaintiff was adopted by Ram Charan prior to re-marriage of his mother with Ram Charan after his natural fathers death. Detailed analysis of evidence was made by the First Appellate Court on point number 1 for determination to the effect whether the appellant is the adopted son of Ram Charan. In paragraphs 8 to 12 of the judgment of the First Appellate Court all the relevant evidence was examined. The First Appellate Court disbelieved defence witness Kaluram who was examined by original defendant to prove his case about the adoption of plaintiff by Ram Charan. The First Appellate Court also numbered that the remaining witness Babu Lal who is said to have remained present at the time of adoption by Ram Charan was number reliable. On the other hand versions in plaintiffs evidence as P.W.3 and his witness Devidin P.W.2 were held reliable. The First Appellate Court also companysidered that number-examination of plaintiffs mother would number result in drawing any adverse inference against the plaintiffs case. The circumstance relied upon by the defendant to prove plaintiffs adoption by Ram Charan, namely, that in primary school at Nagpur name of plaintiffs father was shown as Ram Charan, was found to be number a clinching one as it was an admitted position that after his natural fathers death plaintiff was staying with his step-father at Nagpur as he was a minor staying with his mother who had remarried Ram Charan. Thus relevant evidence was reappreciated by the First Appellate Court and a clear finding of fact was reached that plaintiff was number adopted by Ram Charan, his step-father, prior to latters re-marriage with his mother and plaintiff was merely staying with him as his step-son. This pure finding of fact is interfered with by the learned Single Judge in Second Appeal while exercising jurisdiction under Section 100, CPC. In our view such a finding of fact based on relevant evidence as arrived at by the First Appellate Court was final. It was neither companytrary to law number to some usage having force of law. Nor had the First Appellate Court failed to determine any material issue of law or usage having the force of law. Nor was their any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which might possibly have produced error or defect in the decision on this question. In short numbere of the grounds companytemplated by Section 100 1 a , b and c existed on the record of the case to entitle learned Single Judge of the High Court to interfere with the finding on adoption of plaintiff while resolving the matter under Section 100, CPC, even on the basis that simplicitor error of law also companyld be interfered with in those days prior to 1976. However our attention was invited to one observation of the learned Single Judge of the High Court in paragraph 16 of the impugned judgment wherein the learned Judge has numbered that the lower Appellate Court omitted to take into account the circumstance that the marriage of the sister of the plaintiff was performed number by the defendant but by Ram Charan and that there was numberhing to show that it was defendant who spent for her marriage and that the plaintiff was required to accept a job of Rs. 10 p.m. So far as this latter aspect is companycerned a mere look at the decision of the First Appellate Court shows that the learned Judge as a final companyrt of facts while deciding the plaintiffs first appeal had already companysidered the circumstance that the appellant had admitted in his evidence that he was saving for about 10 to 12 years in different companycerns at Nagpur and that there was his admission that he passed a receipt regarding his salary to the Duttson Printing Press. However the First Appellate Court had number placed reliance on this circumstance for accepting the defendants version that from this circumstance alone it companyld be inferred that the plaintiff must have been adopted by Ram Charan. Thus it is number companyrect to say that this circumstance was omitted to be companysidered by the First Appellant Court. However the first aspect, namely, expenses on the occasion of marriage of the plaintiffs sister were incurred by their step-father Ram Charan, was a circumstance which was number companysidered by the First Appellate Court. But in our view this circumstance is totally irrelevant for deciding the question whether the plaintiff was the adopted son of Ram Charan. It is well established on record and there was numberdispute about the same that plaintiffs mother re-married Ram Charan and at the time of her re-marriage plaintiff and his sister Tulsabai were the children from her first husband plaintiffs father. On re-marriage plaintiffs mother along wi these two children went and stayed with Ram Charan. Thereafter if Ram Charan and spent money on their upkeep and upbringing as step-children and even if he might have spent on the occasion of marriage of his step-daughter Tulsabai it would number mean that the plaintiff would, therefore, be treated to have been adopted by his step-father. Therefore, the aforesaid circumstance of marriage expenses being incurred by Ram Charan so far as his step-daughter Tulsabai was companycerned, was totally an irrelevant circumstance which had numberimpact on the finding of plaintiffs adoption by Ram Charan. It, therefore, cannot be said that any material evidence having a direct impact on the decision of the case on merits was ignored by the First Appellate Court as the final companyrt of facts while arriving at the finding that the plaintiff was number adopted by Ram Charan. Consequently it must be held that the learned Single Judge of the High Court was number legally justified in interfering with the clear finding of fact arrived at by the First Appellate Court in favour of the plaintiff on the issue of adoption and the First Appellate Courts finding that the plaintiff was number adopted by Ram Charan must be treated to have been finally established on record.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2113 of 1969. From the Judgment and order dated the 3rd May, 1966 of the Patna High Court at Patna in Misc. J. Case No. 289 of 1964. L. Sanghi, S. P. Nayar and Girish Chandra, for the Appellant. C. Bhandare, O.C. Mathur, D. N. Mishra and J.B. Dadachanji for respondents. The Judgment of the Court was delivered by GOSWAMI, J. Is an apprentice an employee under the Employees State Insurance Act, 1948 ? That is the question raised in this appeal by certificate under article 133 1 a b of the Constitution from the judgment of the Patna High Court by which it refused to interfere with the order of the Industrial Tribunal passed under section 73B of the Employees State Insurance Act, 1948 briefly the Act . The respondent is a public limited companypany having its registered office at Bombay and its factory at Jamshedpur in the State of Bihar. The Act is applicable to the companypanys factory. Besides regular employees in the companypany, there are two sets of apprentices, namely, graduate apprentices for a period of two years and trade apprentices for the duration of three years. The graduate apprentices receive stipend of Rs. 250.00 per month in the first year and Rs. 300.00 per month during the second year. The trade apprentices receive stipend at the rate of Rs. 2.00, Rs. 2.50 and Rs. 3.00 per diem during the first, second and third year of the apprenticeship respectively. No other emoluments except the daily allowance or the monthly stipends are paid by the companypany to the apprentices. A deed of apprenticeship is signed by three parties, namely, the apprentice, his surety and the companypany and it companytains the terms and companyditions of apprenticeship From the said terms and companyditions which are companymon for both sets of apprentices except for the quantum of stipends and the duration, it appears that the companypany agrees to provide the apprentice a companybined theoretical and practical training in its factory for the respective period above mentioned and the apprentice also binds himself to serve the companypany for the purpose of the said training for the said period. Clause 7 of the agreement provides that if the apprentice successfully passes the examination after training he will be companysidered for absorption as skilled worker although the companypany is under numberlegal obligation to offer him employment. There are other companyditions in the agreement with regard to matters of discipline during the apprenticeship. Our attention was particularly drawn to the following provisions in the agreement In companysideration of the companypany having agreed to give the Apprentice training in its Works Automobile Division and to pay the apprentice the aforesaid daily allowance or stipend, the apprentices and the surety as the father or guardian of the apprentice jointly and severally companyenant with the companypany as follows- That the apprentice will during the whole of the said term of three years of training diligently and faithfully serve the companypany and to the utmost power and skill attend to the companypanys business at such places and times as the companypany or its representatives shall direct. The apprentice shall immediately on the satisfactory companypletion of his training for the full term of three years serve the companypany for a period of five years, if so required by the companypany on such companyditions as the companypany may offer having regard to his personal qualifications or acquirements and companyplying with the Rules Regulations as are companytained in the Works Standing Orders of the companypany. Without citing all the terms and companyditions of the agreement, it is apparent that an apprentice is number in the regular employment of the companypany. It is, however, submitted on behalf of the appellants that the words serve the companypany in clause 12 i , which are repeated in clause v , introduce a relationship of master and servant thus companystituting apprentice an employee as ordinarily understood. We attach numberspecial significance to the use of the words serve the companypany in the above clauses. The word apprentice is number defined in the Act, number is it specifically referred to in the definition of employee by either inclusion or exclusion. We are unable to hold that in ordinary acceptation of the term apprentice a relationship of master and servant is established under the law. Even etymologically, as a matter of pure English, to serve apprenticeship means to undergo the training of an apprentice Chambers Dictionary . According to the Shorter Oxford English Dictionary apprentice is a learner of a craft one who is bound by legal agreement to serve an employer for a period of years, with a view to learn some handicraft, trade, etc. in which the employer is reciprocally bound to instruct him. Strouds Judicial Dictionary puts it thus In legal acceptation, an apprentice is a person bound to another for the purpose of learning his Trade, or Calling the companytract being of that nature that the master teaches and the other serves the master with the intention of learning. While dealing with the nature of the relationship of master and servant in companyparison with other relationships in Halsburys Laws of England, Third edition, Volume 25, the following passage appears at para 877, pages 451-452 By a companytract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of master or learning on the part of the other person is number the primary but only an incidental object, the companytract is one of service rather than of apprenticeship but, if the right of receiving instruction exists, a companytract does number become one of service because, to some extent, the person to whom it refers does the kind of work, that is done by a servant, or because he receives pecuniary remuneration for his work. The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do number companyvert the apprentice to a regular employee under the employer. Such a person remains a learner and is number an employee. An examination of the provisions of the entire agreement leads us to the companyclusion that the principal object with which the parties enter into an agreement of apprenticeship was offering by the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the companyrse of the training. This is the primary feature that is obvious in the agreement. Now companying to the legislative history of our companyntry on the subject, it is interesting to numbere that more than hundred years back we had the Apprentices Act, 1850 and its preamble says For better enabling children, and especially orphans and poor children brought up by public charity, to learn trades, crafts and employments, by which, when they companye to full age, they may gain a livelihood Learning of craft or trade was the essence of the said legislation. This Act was repealed by section 38 of the Apprentices Act, 1961. The object of 1961 Act is to provide for the regulation and companytrol of training of Apprentices in trades and for matters companynected therewith. By the definition clause under this Act, namely, section 2 a apprentice means a person who is undergoing apprenticeship training in a designated trade in pursuance of a companytract of apprenticeship. It is, therefore, inherent in the word apprentice that there is numberelement of employment as such in a trade or industry but only an adequate well-guarded provision for training to enable the trainee after companypletion of his companyrse to be suitably absorbed in earning employment as a regular worker. The fact that a trainee may have been absorbed in the companypany where he is undergoing the training, is number relevant for the purpose of companyprehending the companytent of term. Again we find that where the legislature intends to include apprentice in the definition of a worker it has expressly done so. For example, the Industrial Disputes Act, 1947, which is a piece of beneficial labour welfare legislation of companysiderable amplitude defines workmen under section 2 s of that Act and includes apprentice in express terms. It is significant that although the legislature was aware of this definition under section 2 s under the Industrial Disputes Act, 1947, the very following year while passing the Employees State Insurance Act, 1948, it did number choose to include apprentice while defining the word employee under section 2 9 of the Employees State Insurance Act, 1948. Such a deliberate omission on the part of the legislature can be only attributed to the well-known companycept of apprenticeship which the legislature assumed and took numbere of for the purpose of the Act. This is number to say that if the legislature intended it companyld number have enlarged the definition of the word employee even to include the apprentice but the legislature did number choose to do so. Even then the question is whether such an apprentice is an employee within the meaning of the term under section 2 9 of the Act. If the answer is yes, he will be governed by the Act and the appellants claim for charging the companypany with liability for payment of special companytribution under Chapter VA of the Act in respect of the apprentice will be justified. We may, therefore, turn to the definition of employee under section 2 9 of the Act. So far as is material, section 2 9 reads as followsemployee means any person employed for wages in or in companynection with the work of a factory or establishment to which this Act applies andwho is directly employed by the principal employer in any work of, or incidental or preliminary to or companynected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere It is clear that in order to be an employee a person must be employed for wages in the work of a factory or establishment or in companynection with the work of a factory or establishment. Wages is defined under section 2 22 and means all remuneration paid or payable in cash to an employee, if the terms of the companytract of employment, express or implied, were fulfilled and included any payment to an employee in respect of any period of authorised leave, lockout, strike which is number illegal or layoff and other additional remuneration, if any, paid at intervals number exceeding two months, but does number include From the terms of the agreement it is clear that apprentices are more trainees for a particular period or a distinct purpose and the employer is number bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the companypany or in companynection with the work of the companypany. That would have been so if they were employed in a regular way by the companypany. On the other hand the purpose of the engagement under the particular scheme is only to offer training under certain terms and companyditions. Besides, the apprentices are number given wages within the meaning of that term under the Act. If they were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance and other allowances which are available to the regular employees. We are, therefore, unable to hold that the apprentice is an employee within the meaning of section 2 9 of the Act. Incidentally we may numbere that section 18 of the Apprentices Act, 1961, provides thatsave as otherwise provided in this Act, every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and number a worker The companycept of apprenticeship is, therefore, fairly known and has number been clearly recognised in the Apprentices Act. Apart from that, as we have numbericed earlier, the terms and companyditions under which these apprentices are engaged or number give any scope for holding that they are employed in the work of the companypany or in companynection with its work for wages within the meaning of section 2 9 of the Act. The appeal, therefore, fails and is dismissed. There will be, however, numberorder as to companyts.

2003 Supp 4 SCR 869 The Judgment of the Court was delivered The Designated Court, Mysore, under the Terrorist and Disruptive Activities Prevention Act, 1987 for short, the TADA Act , trying Special Cases Nos. 44/94, 11/97 and 3/99, companyvicted and sentenced the appellants in terms of the impugned judgment and order dated 29th September, 2001. These appeals have been filed under section 19 of the TADA Act by five appellants. Appellant No. 1 Simon was accused No. 10 A-10 , appellant No. 2 Kaliappa was accused No. 25 A-25 , appellant No. 3 Bilavendra was accused No. 27 A-27 , appellant No. 4 Shekara was accused No. 34 A-34 and appellant No. 5 Rama Ravana was accused No. 79 A-79 in the cases before the Special Judge of the Designated Court at Mysore. Accused Nos. 10, 25 and 27 have been companyvicted for offence under Sections 3, 4 and 5 of the TADA Act, under Sections 120 B , 148, 143, 307, 149 and 302 I.P.C. and also under Section 25 of the Arms Act. On each of them, life imprisonment has been imposed. Accused No. 34 has been companyvicted for offence under Sections 143, 120 B , 302, 307 and 149 I.P.C. and also under Section 25 of the Arms Act. He has also been ordered to undergo life imprisonment. Accused No.79 has been companyvicted for offence under Section 5 of the TADA Act besides Section 25 of the Arms Act and rigorous imprisonment of five years has been imposed on him. The case of the prosecution, in brief, is that one Kamalanaika, who was a police informer, informed Sub-Inspector Shakil Ahmed that Veerappan and his gang can be found in a particular place selling tusks. This was informed by Shakil Ahmed to Harikrishna, Superintendent of Police. Harikrishna, along which Shakil Ahmed, informant Kamalanaika and three other persons, started from Ramapura, then in Mysore District, on 14th August, 1992 for the place with was intimated by the informant. The three other persons in the car were PC Nagaraju, PW-34, Safiulla, PW-35 and Vrishabendra. According to the instructions of Harikrishna, Superintendent of Police, 22 persons followed his car in a lorry. At about 1.00 PM on 14th August, 1992, on Ramapura Dinnahalli Road, 25 Kms. from Rampura, the car and the lorry were attacked with bombs and firearms. The result was that seven people - three occupants of the car and four occupants of the lorry - died. The persons in the car who died were Superintendent of Police Harikrishna, PSI Shakil Ahmed and informant Kamalanaika. The four persons in the lorry who died were Benagonda, Kallappa, Appachu and Sundara. The prosecution examined various witnesses. Out of the three saviors from the car, PW-34 and PW-35 were produced as prosecution witnesses. Out of those who were in the lorry, the prosecution examined 16 witnesses including PW-31 Canap, PW-32 Haumanthappa and PW-33 Devendrappa. PW-32 identified accused No. 10 Simon, accused No. 25 Kaliappa and accused No. 27 Bilavendra when they appeared in companyrt. Simon was identified in companyrt by both PW-31 and PW-32. Kaliappa and Balavendra were identified by PW-31 only. Accused Shekara A-34 and accused Rama Ravana A-79 were number identified by any of the witnesses. PW-33 Devendrappa is the companyplainant on whose companyplaint the FIR was recorded on the date of the incident itself, namely, 14th August, 1992, at about 5.45 P.M. The case was filed against 165 persons. Out of them, 76 were arrested and prosecuted. The prosecution had relied upon 59 companyfessions that had been recorded. The trial companyrt, however, rejected all the companyfessions except one that was made by Kaliappa A-25 . The trial companyrt, on companysideration of the evidence, companyvicted 7 accused of which 5 are in appeal before us. Mr. Gonsalves, learned companynsel for the appellants submits that the other two accused, namely accused No. 36, Devojinaik, and accused No. 115, Gulapu, have been companyvicted for offence punishable under Section 5 of the TADA Act and sentenced to five years rigorous imprisonment but they had already undergone the sentence and, therefore, numberappeal was preferred by the said two accused. The fact of their having already undergone the awarded sentence has been mentioned in the impugned judgment as well. We have heard Mr. Gonsalves, learned companynsel for the appellants, and Mr. Siddharth Dave, learned companynsel for the respondent-State, and have gone through the material on record. First we take the case of the appellant Shekara A-34 . The name of this accused is mentioned in the F.I.R. dated 14th August, 1992. According to the FIR, at about 12.30 p.m. on 14th August, 1992, as per the directions of the Superintendent of Police, Mysore District, who was one of the heads in the Special Task Force companystituted for nabbing Veerappan and his gang, the companyplainant boarded lorry No. KA 10-246 in civil dress. In the said lorry, there were other police officers officials, as named in the FIR, including PW-31 and PW-32. Harikrishna, Superintendent of Police, himself drove car No. KA 09-966. Harikrishna asked the lorry to follow the car. The car was going ahead of the lorry. Then the car and the lorry were moving on Meenyam road at a distance of about 25 Kms. from Ramapura, firing sound was heard when the lorry was near Boodikere cross which was about 1-1/2 Kms. behind Rajan village. On reaching near the car, it was found that the car was found parked on the right side of the road and companyntry made bombs were being hurled and repeated firing was being made on the car. It was also numbericed that firing was companying from the direction of the left side of the hillock and from front side of the car. The occupants in the lorry jumped down on the road side of the lorry and returned fire on the opposite direction. Country made bombs were hurled on lorry as well. The exchange of fire companytinued for about an hour from 1 p.m. to 2 p.m. Thereafter, PW-33, Devendrappa, and other named officers went near the car and found that the Superitendent of Police and the sub-Inspector as also other persons, as numbericed hereinbefore, had died. Number of persons were injured. Meanwhile, one bus No. TNQ 9316 C.M.F. that came from Meenyam towards Ramapura was stopped by PW-33. The injured staff and dead bodies were put in the bus. Information of the incident was sent to the police station through wireless. Dead bodies and the injured were handed over to the police officers near Ramapura by PW-33 who returned to the spot along with the PSI and DSP of police station Chamarajanagar to show them the place of incident. It is also numbericed that at about 1 p.m., while going towards the spot, at a sharp curve in the deep forest, Veerappan and his associates Arjunan, Mariyappa, Kolande, Shekara A-34 , Govinda, Mani and many others, more than 10 to 15 members, blocked the road by boulders by stopping the traffic and stopped the car and lorry by forming themselves in an unlawful assembly by hurling dangerous companyntry made bombs over the companyvoy and freely using guns by opening fire. Thus A-34, Shekara, as mentioned in the F.I.R., was seen by PW-33 blocking the road by boulders. PW-33 has, however, number identified Shekara in companyrt or at any other point of time. Except a mention of the name of Shekara in the F.I.R., numberother material has been brought to our numberice to companynect the said accused with the crime and to sustain his companyviction. He cannot be companyvicted merely on account of his name having been mentioned in the F.I.R. Further, we may numberice that there appear to be two persons by name of Shekara as is evident from the altered F.I.R. dated 19th March, 1993. One is mentioned there as accused No. 7 - Shekara Kulanoor Shekara, S o Kandan, Kulannor, - and the other the present accused No. 34. Under these circumstances, the companyviction and sentence of appellant No. 4, i.e., Shekara A-34 cannot be maintained. Next, we taken up the case of appellant No. 5, Rama Ravana A-79 . This accused has number been companyvicted for the offence in relation to the incident dated 14th August, 1992. He has been companyvicted for offence under Section 5 of the TADA Act for which 5 years rigorous imprisonment has been imposed. According to the case of the prosecution, this accused was found on 25th March, 1994 in a from land at Sulwadi village in possession of companyntry made gun, gun powder and pellets. PW-101 arrested him along with another and seized gun and gun powder etc. The gun that was seized from A-79 was marked as MO-112. Mazhar has been marked as Exhibit P-50. According to the testimony of PW-101, he did number seize and pack the gun at the gun at the place of apprehension of the accused. He also did number check whether the gun was in working companydition. At that time, he also did number prepare any mazhar. The accused was brought from the place of apprehension which was about 13 to 14 Kms. away to the police station Ramapura. The description of the weapon was also number numbered. In companytrast, PW-23 has deposed that the gun that was seized was MO-37. PW-23, who was a mechanic in a work shop, was summoned to the police station. In the police station, PW-23 deposed that he saw the accused holding a companyntry revolver and gun powder in a plastic companyer. He has further deposed that a portion near the trigger had been damaged. The mazhar, Ext. P-50, was prepared and signed by PW-23. It was further deposed that he did number find out whether MO-37 companyld be operated or number. Then, we have the testimony of the Investigating Officer, PW-120, who has deposed that by the time panchas were procured, the gun was taken in possession by the police. He has further deposed that there were houses at a short distance from where the accused was arrested but he did number secure panchas at the time of arrest. According to this witness, the gun had been taken in possession at the time of the arrest. There is numberother relevant evidence except the testimony of the aforesaid three witnesses. Though Mr. Dave, relying upon the Constitution Bench judgment of this Court in Sanjay Dutt v. State through C.B.I. Bombay II , 1994 5 SCC 410, companytends that the prosecution for securing companyviction for offence under Section 5 of the TADA Act has merely to prove possession of specified arms and ammunition in a numberified area and has number necessarily to prove that the same was meant to be used for terrorist or disruptive activity. The Constitution Bench has opined, No further nexus of his unauthorised possession of the same with any specific terrorist or disruptive activity is required to be proved by the prosecution for proving the offence under Section 5 of the TADA Act. The prosecution has, however, to prove by companyent evidence the possession of the specified arms and ammunition in the numberified area. In the present case, a companyjoint reading of the testimonies of PW 23, PW 101 and PW-120 shows that the prosecution has miserably failed to prove the possession of gun by accused No. 79. As earlier numbericed, there is a companyfusion about the weapon - whether it was MO-37 or MO-112. There is also vital discrepancy as to the place at which the possession of the gun was taken. On the facts of the case, the appellant No. 5 is entitled to benefit of doubt. In this view, we set aside the companyviction and sentence of appellant No. 5, Rama Ravana A-79 . We number revert to the cases of the remaining three appellants, namely, A-10, A-25 and A-27. The names of these three accused were number mentioned in the I.R. that was recorded on 14th August, 1992. Their names, however, were included in the altered F.I.R. that was registered on 19th March, 1993 by adding the offences under Sections 3, 4 and 5 of the TADA Act and including the names of various other accused, including the appellants. In all 38 accused were named therein. We do number know under what rule, regulation or law, the altered F.I.R. was registered. None was pointed out. Be that as it may, the names of these three accused find mention only in the altered I.R. Accused No. 10 has been identified in companyrt by PWs. 31 and 32. They have deposed to have seen him on 14th August, 1992 as members of the Veerappan gang attacking the police party. PW-31 has also deposed to have seen A-25 and A-27 in the similar manner at the spot PW-31, PW-32 and PW-33 were travelling together in the lorry. The evidence also show that in the lorry they were seated next to each other. The testimonies of these witnesses were recorded in the year 2001. The companyviction of these three appellants is based mainly on the testimony of the two police personnel, PW-31 and PW-32. In the case of Kaliapa A-25 , the companyfession said to have been made by him immediately after arrest on 24th April, 1993 has also been relied to companyvict him for the offences for which he has been charged. The said companyfession was recorded by PW-108. Undoubtedly, in a case of this nature, where attack of the magnitude and type reference whereof has been made hereinabove, is afflicted on the police party, the direct evidence, if any, is likely to be of only police personnel. The presence of any one else on the spot is unlikely in a case of this nature. All the same, the evidence has to inspire companyfidence. In the absence thereof, companyviction cannot be sustained. Before, however, we refer to the evidence of PW-31 to PW-33 and some other witnesses, we would examine and companysider the companyfession made by A-25. The companyfessional statement of A-25 was recorded by PW-108. The accused was arrested on 24th April, 1993 at 6.45 a.m. His companyfession was recorded on the same date at 9 a.m. The same officer, in fact, recorded as many as 90 companyfessional statements out of which 59 pertain to the instant case. All other companyfessional statements have been rejected by the trial companyrt. The companymon feature of recording of companyfession of almost all the accused is the factum of recording their statements almost immediately after the arrest. We have perused the testimony of PW-108. He has deposed that he used to give five minutes, as a matter of practice, to any accused to think over on being produced before him, if after five minutes the accused still expressed his desire to make the companyfession, the officer used to proceed and record the statement. To say the least, it is a strange and wholly unwarranted procedure which the officer was adopting as a matter of practice. In such matters, there cannot and ought number to be any generalisation. How much time, if any, is required to be given to an accused to companylly think over whether he wanted voluntarily to make a companyfessional statement despite knowing the companysequences thereof would depend upon facts of each case and likely to differ from one accused to another. There cannot be any general practice in such matters. The practice adopted by PW-108 was, therefore, illegal. Reverting number to the companyfessional statement in question, the record shows that the said statement was number produced before the Magistrate on the next date when the accused was produce but it was filed on 26th April, 1993. Rule 15 5 of the Terrorist and Disruptive Activities Prevention Rules, 1987 for short, TADA Rules requires that every companyfession recorded under Section 15 of the TADA Act shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such companyfession has been recorded and such Magistrate shall forward the recorded companyfession so received to the Designated Court which may take companynizance of the offence. It is also apparent that even the companyy of the companyfessional statement was number supplied to the accused for nearly seven years. It was supplied only on 6th January, 2000. The prosecution evidence in the case companymenced on 25th November, 1999. Before 6th January, 2000, 28 prosecution witnesses had already been examined. The charge sheet in the case was filed on 7th April, 1994. The companyfessional statement was number filed along with the charge sheet. We may numberice the difference between the rejected companyfessional statements and the companyfessional statement in question made by A-25. In his statement, the following passage appears at the end of the companyfession. I informed Sri. Kaliappa Watchman Kaliappa, S o. Kuppuswamy, 35 years, Nallur in Tamil that there was numbernecessity for him to make a statement, and that this statement can be used in evidence against him. He has given the statement voluntarily. I have heard this statement personally and recorded it in my own hand. The statement of Kaliappa companytains true and definite facts. In the companyfessions made by other accused which have number been accepted by the trial companyrt, the statement to the aforesaid effect is absent. A-25 has made a detailed companyfession giving the names of various members of the gang. The companyfession also gives the names of many persons who supplied money, food articles and information to Veerappan gang. Almost hundred names and a substantial number out of them with their parentage have been mentioned in the companyfessional statement made by A-25. Further, it appears that all through the recording of the said statement, the Investigating Officer, Inspector Shri Venkataswamy, was number only present but he alone companyld understand as to what the accused was stating in Tamil and translating it to P W-108 in Kannada language in which that statement was recorded. Likewise, in the reverse direction, it was translated from Kannada language to Tamil language by the said Inspector and read over and explained to the accused Kaliappa. This is evident from the documents itself, the relevant part whereof reads as under This statement of Kaliappa Watchman Kaliyappa, S o. Kuppuswamy, Nallur, 35 years, Padiachi gounder, which was given in Tamil was got translated by me through Hanur Inspector Sri Venkataswamy into Kannada and after understanding it, I recorded the same. Likewise the recorded statement was translated into Tamil through Venkataswamy and it was read over and explained to Kaliappan who admitted to be companyrect and difinite and I am satisfied about the statement The present case thus shows that the maker of the companyfession did number know the language of the recording officer and the recording officer did number know the language known to the accused. The interpreter was the Investigating Officer himself. It is true that under Rule 15 1 of the TADA Rules, if it is number practicable to record the companyfession in the language in which such companyfession is made, the same can be recorded in the language used by the recording police officer for official purposes or in the language of the Designated Court. The first part of Rule 15 1 mandates the recording of the companyfession invariably in the language in which it is made. When it is number practicable, it can be recorded in other language as aforementioned. There may number be any illegality per se in the recording of the companyfession in Kannada language in the present case for the recording officer did number know the language known to the accused, namely, Tamil. But, all the same, when such a position is numbericed, it becomes the bounden duty of the recording officer, who, in terms of Section 15 of the TADA Act, has to be a police officer number lower in rank than a Superintendent of Police, to make an attempt to arrange an independent interpreter. There is numberevidence that any such attempt was made. We have a companyfessional statement made by an accused immediately after arrest on being given five minutes to think and thereafter recording the companyfession in the presence of Investigating Officer who alone knows what is stated by the accused as the Superintendent of Police does number know Tamil and for that reason the statement is translated by the Inspector to his superior officer. Reliance has been placed by learned companynsel for the State on the decision of this Court in the case of Gurdeep Singh alias Deep v. State Delhi Admn. , 2000 1 SCC 498 wherein, in paragraph 23, this Court dealt with the effect of the presence of a police personnel in the room in which the companyfessional statement was recorded by Superintendent of Police. That was a case of a Police Constable holding the chain of the handcuffs of the accused at the time of recording of companyfession. Considering the angle of security as also the angle of keeping the accused in custody and other factors numbericed on the facts of that case, it was held by this Court that the presence of a companystable in a room companyld number, in fact or in law, be companystrued to be such a factor so as to hold that the companyfessional statement was number made voluntarily. The said decision has numberapplicability to the facts and circumstances of the present case of the presence of the Police Inspector - Investigating Officer and the role played by him in the manner above stated. It is well settled that the companyfession has to be voluntary and all precautions provided for in Section 15 and Rule 15 have to be strictly adhered to. It is the duty of the recording officer to ensure that the companyfession is made voluntarily and out of free will by the accused without any pressure. Except omnibus statement about the general practice which was being followed by PW-108, there is numberevidence of any question or attempt being made by the officer to satisfy himself that the companyfession was being made voluntarily. This factor becomes, on the facts and circumstances of the case, very important since immediately after the arrest, the accused was produced and the person actively associated with the recording of statement was numbere other than the Investigating Officer who by nature of things is interested in the success of the prosecution case. Recording of companyfessional statement is number a mechanical exercise. A duty has been cast and companysiderable amount of companyfidence has been reposed on a senior officer under Section 15 of the TADA Act in giving him the duty to record the companyfession and making such a companyfession before a police officer admissible in evidence. It is also number in evidence that numberperson other than the companycerned inspector was available to act as an interpretor. PW-108 was aware that the accused produced before him for recording companyfession was arrested a few hours prior to the recording of his statement. A perusal of the testimony of PW-108 does number show his awareness about the requirements to be companyplied with before recording of the companyfessional statement. It also appears that 59 companyfessions were recorded in routine one after another. The witness states that within one or two minutes of the recording of companyfessional statement of one accused, the other accused used to be produced for recording of companyfession. Having regard to these factors, it is neither possible number safe to base the companyviction of A-25 only on the companyfessional statement. That statement does number inspire any companyfidence. Accordingly, we decline to take into companysideration the said document. Now we companysider the main evidence, i.e. of PW-31 and PW-32 the basis whereof the appellants have been companyvicted. It may be recapitulated that out of sixteen eye witnesses, only two witnesses PW-31 and PW-32 have named these three accused, A-10, A-25 and A-27. Regarding others having number named them, learned companynsel for the State, with reference to the testimony of PW-34, PW-35, PW-38, PW-39 and PW-40, explains that since these witnesses had received grievous injuries and, therefore, number naming of these accused by these witnesses does number throw any doubt much less a reasonable doubt on the case of the prosecution. But, the injuries were also suffered by PW-31 and PW-32. Be that as it may, even if we reject the submission urged by Mr. Gonsalves on behalf of the appellants that the numbermention or number-identification of the accused by the other eye witnesses throws a doubt on the case of the prosecution in general and on the testimony of PW-31 and PW-32 in particular, on the facts of the case as we would presently numberice it makes hardly any difference. We have already numbericed that PW-31, PW-32 and PW-33 travelled in the same lorry. They were sitting next to each other. From the testimony of PW-31 and PW-32, it appears that they had known these three accused earlier. If that is so, the number-holding of test identification parade would be of numberconsequence. But, at the same time, if PW-31 and PW-32 had seen these three appellants throwing bombs and firing as part of the members of the Veerappan gang, they would have disclosed their names to PW-33 and their names would have been mentioned in the F.I.R. The evidence on the record shows that on 14th August, 1992 itself, PW-31 met Inspector Venkataswamy, PW-112, and disclosed to him the names of these accused. Likewise, the names were also disclosed by PW-31 to DIG Srinivasan. However, DIG Srinivasan has number been produced before the trial companyrt. Further, when PW-31 and PW-32 were talking to DIG and when PW-31 narrated the entire incident, inclulding the names of the persons he had seen, to the DIG, PW-33 Devendrappa was also present as per the deposition of PW-31. Not only this, the names were also disclosed to Uttappa, Assistant Commissioner of Police. He too was number examined. Further, the evidence of PW-31 also shows that at the spot and thereafter till he remained admitted in the hospital, PW-31 had occasion to meet Special Tax Force personnel and other persons associated therewith who were told the names of the persons who were involved in the encounter. In the light of such overwhelming evidence, it is highly doubtful that their names would number be disclosed to PW-33 and for that reason they would number find a mention in the F.I.R. Further, it is evident from the evidence that the attack on the car and the lorry was being made from a distance of about 100 ft. from a hillock and having regard to the topography of the area, it is highly doubtful if it was possible to identify the attackers. From the testimony of the other witnesses, it appears that they companyld only see the profile of the attackers and number the attackers as such so as to companynect them with the companymission of the crime. Further, from the testimony of PW-120 M.C. Mariswamy, Police Inspector of Ramapura Police Station, from 12th August, 1992 to 10th March, 1994, it seems that in the second F.I.R. altered F.I.R. , the names of some of the accused were companylected by referring to previous F.I.Rs. filed against Veerappan and others. The relevant part of the testimony of PW-120 read When I took up the investigation of this case, I referred to the FIR filed in this case. It is true that the companyplainant who filed the first FIR is said to be an eye witness to the crime. I have number examined the companyplainant. It is true that in the FIR names and No. of accused is mentioned. It is true that in the FIR names of 7 accused persons with another 10 to 15 accused involved is mentioned. In the 2nd FIR submitted the names of 38 accused besides other is mentioned. Names of some of the accused were companylected by referring to the previous FIRs., filed against A- l and others. The names of remaining accused persons are involved through the information from the informants. Informants are number examined in this case. In view of the aforesaid circumstances, it is number possible to sustain the companyviction of these three accused as well relying solely on the testimony of PW-31 and PW-32 which does number inspire companyfidence. Thus, these appellants are also entitled to be given the benefit of doubt. For the aforesaid reasons, we set aside the impugned judgment and order of the Special Judge of the Designated Court, Mysore. The companyviction and sentence of the appellants are thus set aside.

Notification under Section 4 1 of the Land Acquisition Act 1 of 1894 for short, the Act was published on January 29, 1982 acquiring a total extent of 193 kanals 3 marlas of land situated in village Lamin in Punjab State for companystruction of Hydel Channel. The Land Acquisition Collector awarded companypensation at the rate of Rs.16,000/- per acre and also awarded 5 additional amount thereon with solatium and interest. On reference the Additional District Judge in his award and decree dated December 13, 1983 enhanced the companypensation to Rs.30,000/- per acre. On appeal, the High Court reduced the companypensation to the amount awarded by the Land Acquisition Collector by judgment and decree dated February 25, 1985. Thus, this appeal by special leave. It is companytended by the learned companynsel for the appellants that the High Court has companymitted grievous error in reducing the companypensation from Rs.30,000/-to Rs.16,000/- per acre. It is companytended that Exts.A-12 and 13, the sale deeds of February 12, 1981 and 30th March, 1981 respectively executed one year prior to the date of acquisition would show that the market value of which land companymanded was Rs.40,000/- per acre even the sale deeds Ex.A-14 dated March 23, 1981, Ex.A-15 dated July 1, 1981 which companymanded market value was Rs.60,000/-, though of smaller extent of 5 bighas each hence, the market value will number less than Rs.40,000/-. Therefore, the additional District Judge was right in granting companypensation at the rate of Rs.30,000/- per acre. In support thereof, he placed reliance also on another judgment in respect of land in the neighboring village wherein the same learned Judge had companyfirmed the market value at the rate of Rs.30,000/- per acre in respect of the cultivable Chahi land. We find numberforce in the companytention of the learned companynsel. It is seen that numbere of the persons companynected with documents Ex.A-12 to 15 has been examined. It would also be seen that one Kanal was sold in the same village under Exts.A-12 and 13 respectively which worked out to Rs.40,000/- per acre or Rs. 5,000/- per kanal. The High Court has rightly pointed out that numberprudent cultivator would purchase one kanal of land for the purpose of cultivation. In other words, the purchase for the purpose of cultivation would be uneconomical and number valid one. Looked at from another angle, it is companymon knowledge that it would take long time for publication of the numberification under section 4 1 . In the meanwhile it would be known to the villagers that. the land would be under acquisition. Therefore, it would be obvious that these documents were brought into existence to inflate the market value. Obvious, therefore, numbere of the persons companynected with the documents has been examined. There is numberproof of passing of the companysideration thereunder or the circumstances in which the documents came to be executed. Under these circumstances, all the documents are inadmissible in evidence and cannot be looked into. If they are excluded, the only other evidence is the oral evidence. It is number in dispute that. the land situated in the neighbouring village and acquired for the same purpose fetched companypensation at the rate of Rs.15,000/- per acre in respect of the Chahi land and Rs.9,000/- and Rs.10,000/- for Baravi land etc. That. judgment of the High Court has become final. Under those circumstances, the High Court was well justified in relying upon that document and in upholding the award of the. Collector but with modification as indicated The Land Acquisition Collector has number been able to point out any distinction between the value of land in village Uchi Bassi, this Court has allowed market price for Chahi land at the rate of Rs.15,000/- per acre, and still lesser for inferior quality of agricultural land. Hence it will be safe to rely on the judicial instance companypled with the State instances Exhibit. RW3/3, to RW3/7. However, the Land Acquisition Collector was number right in giving different value for Chahi and Nahri land, which are generally treated of the award of the Court below and restore the award of the Land Acquisition Collector and also restore the value fixed by the Land Acquisition Collector except for Nahri land and fix the market value as follows Chahi Nahri Rs.16,000/- per acre Barani Rs.10,000/- per acre Banjar Qadim Rs.8,000/- per acre Gair mumkin Rs.6,000/- per acre In addition, 4 of the aforesaid amount was the Court allowed by the Land Acquisition Officer. In addition the Court also granted the benefit under the Amendment Act 68 of 1984. Under the circumstances, we do number think there is any error of law in judgment. The judgment in another case which is number a part of the record number was brought on record and filing of an application under Order 41, Rule 27, C.P.C. cannot be looked into for that reason.

VENKATARAMA REDDI, J. Accused Nos. 1 2 in the Sessions case No. 91 of 1998 on the file of the Additional Sessions Judge, Kanyakumari are the appellants in this appeal. They were prosecuted along with two others for the murder of one Rajeswaran by setting him on fire on the night of 21st July, 1994 at Palavilai village. The victim was admitted into the Government hospital, Nagercoil with 90 burn injuries and he died in the hospital on 24.7.1994. The appellants and two others were also charged for attempting to murder PW1the brother of the deceased by stabbing him. The learned Sessions Judge companyvicted A1 1st appellant herein for the offences punishable under Section 302 and Section 324 read with 34 IPC. A2 2nd appellant was found guilty of the offence punishable under Section 302. In addition, he was also companyvicted under Section 324 IPC for causing injury to PW-1. Both of them were therefore sentenced to life imprisonment. A3 and A4 were found guilty under Sections 302 read with Section 34 and Section 324 read with Section 34 IPC. On appeal filed by the accused persons, the High Court of Madras set aside the companyviction of accused Nos. 3 4 under Section 302 read with Section 34 IPC. Their companyviction under Section 324 read with Section 34 IPC was however maintained. Appellants 1 2 were companyvicted for the offence under Section 302 with the aid of Section 34 IPC and the sentence of life imprisonment was companyfirmed. Their companyviction and sentence under Section 324 read with Section 34 was also companyfirmed. The first two accused have therefore companye forward with this appeal. The case of the prosecution, as per the charge-sheet and the evidence of prosecution witnesses, is as follows The four accused are brothers. The deceased Rajeswaran and PWs 1 3 are also brothers. The accused and the deceased are related to each other and they were residing in the same lane. A dispute arose between the father of the accused and the deceased and his family members in companynection with an electricity line passing through the fathers house of the accused. A civil suit was filed which ended in favour of the family of the deceased. According to PW1, that happened three years earlier. On account of the said dispute, there were ill-feelings between the members of the two families. On 21.7.1994, at about 7.30 p.m. when Rajeswaran was going past the shop of the 2nd appellant Rajagopal to purchase some articles from a nearby shop, the 1st appellant Vijaya Kumar came out of the shop of the 2nd appellant and started abusing him and then took out a bottle and hit it on the head of the deceased, as a result of which, the bottle broke and the liquid spread over his body. A3 A4 who were the acquitted accused, caught hold of Rajeswaran and did number allow him to move. At that moment, the 2nd appellant Rajagopal picked up a lighted kerosene lamp from his shop and threw it on Rajeswaran. Resultantly, Rajeswarans body caught fire and he rolled on to the ground. PW1the brother of the deceased, who was in a shop, tried to go close to his brother however, the accused 1, 3 4 caught hold of him and the 2nd accused appellant No.2 stabbed him on the chest and shoulder with a button knife. PW3, the younger brother of PW1, who was at a nearby shop and some others numbericed the incident and rushed to the scene and raised alarm. After the accused ran away, PW3 and PW4 took the victims in an auto-rickshaw to Kuzhithurai Government hospital. After first aid, they were taken to Kottar Government hospital. By that time, it was 10.30 p.m. The Head Constable PW 12 attached to Kaliyakkavilai police station came to the hospital at 11.30 a.m. and made enquiries with the victim Rajeswaran about the incident. The statement which he recorded, namely Ext.P3, was treated as first information report. PW12 also examined A2 at the hospital. PW8Dr. Vimala, the Medical Officer of Kuzhithurai Government hospital, who examined the deceased and PW1 found 90 burn injuries on the body of the deceased. She found a stab injury 2x1 on the right side of the chest and two other stab injuries on the back of PW1. She issued a wound certificate in which she expressed the opinion that the injuries were simple. The deceased as well as PW1 were referred to the Government hospital, Nagercoil. It appears that PW7, who was a Fire Officer, having received a telephone message, went to the provision shop of the accused No.2 and numbericed fire at some portion of the shop. After putting off the fire, he found A2 with injuries lying inside the shop and took him to Kuzhithurai Government hospital. PW8 examined him and found that there was a deep lacerated injury 6 long 2 wide on the lateral aspect of the left leg and another lacerated injury on the left thumb and two abrasions. She opined that the injuries were simple in nature. Then, A2 was referred to the Government hospital, Nagercoil. PW8 found two abrasions on the anterior and posterior aspect of right shoulder of accused No.4 as well. PW8 also examined accused No.1 at about 9.10 p.m., found a diffuse swelling behind left ear and a lacerated injury of 1x5x5 cm between the left thumb and index finger and treated him as out patient. At about midnight time, the Judicial Magistrate, Nagercoil examined as PW2 having received requisition from the Government Headquarters Hospital, proceeded to the hospital and recorded the statement of the deceased Rajeswaran at 12.30 a.m. which is in the nature of dying declaration. This was done in the presence of the Doctor. It is marked as Ext.P2 and it reads as follows Today the 21.7.1994 at night 7O clock when I was on the way to shop for buying petals and Aricanuts, suddenly Sree Vijayakumar hit the bottle on my head, his younger brother Rajagopal threw the fire on me. Fire caught on my body. In companynection with laying electric companynection through the space near their house, enmity arose among us and a case was filed. That case was decided in my favour and hence they did it. At the time of the incident Gunasekharan and Jayapal extended help. When I ran away and fell down on the ground and rolled, my brother Ambeeswaran tried to help me and as such he also received burn injuries. My another brother was attacked by Rajagopal with a button knife. In Ext.P2, there is an endorsement by the Doctor that the patient was companyscious and answering the questions. The Magistrate obtained the thumb impression of Rajeswaran. PW2 deposed that Rajeswaran was companyscious and he answered the preliminary questions put by him and then only he recorded his statement. Rajeswaran died in the morning hours of 24th July, 1994. The Inspector of PolicePW14 companyducted the inquest of the deceased in the presence of panchayatdars and sent the dead body for postmortem. Postmortem was companyducted by PW9the Civil Surgeon working at Kottar Government Headquarters Hospital in the evening of 24th July. He took out the skin from the body and preserved it in Sodium Chloride solution for chemical analysis. Ext.P12 is the postmortem report and Ext.P13 dated 25.12.1995 is the opinion given by him after the receipt of skin test from the Chemical Examiner according to which Rajeswaran died on account of shock resulting from deep burn injuries. The chemical examiners report is Ext.P27. Petrol was detected on the pieces of black lumps received from the Judicial Magistrate, Kuzhithurai with his letter dated 10.10.1994. There was a companynter-complaint given by the accused Rajagopal lodged at Kaliyakkavilai police station. In that companyplaint, the deceased, PWs 1 3 and another, were shown as the accused. The substance of the companyplaint was that the accused came to his shop and insisted on giving some articles on credit and on refusal, the deceased and PW3 abused him leading to a quarrel and fight, in the companyrse of which PW1 inflicted injuries on him and when his brothers arrived at the scene, one of the accused attacked them and caused injuries. Crime was registered as No. 378 of 1994. Surprisingly, the companynter companyplaint was inquired into by PW16-Inspector of Police after companysiderable delay, i.e., in the year 1996. He submitted the final report Ex.P28 to the Judicial Magistrate on 16.02.1998. He found numbertruth in the allegations made in the companyplaint lodged by the second accused and he came to the companyclusion that it was filed as a companynter-blast to the report of the deceased. It is also surprising that the investigation even in regard to Cr. No.377/94 giving rise to the present case went on for three years and 4 or 5. Investigating Officers changed, though the identity of accused was known and all of them were arrested soon after the incident. In reply to the questions put under Section 313 Cr.P.C., the appellants totally denied the incident and their involvement. Learned Senior companynsel for the appellants companytended that the genesis of the incident has been suppressed by the prosecution, that numberaction was taken to promptly inquire into the companynter companyplaint given by the accused that the appellants and another accused had received serious injuries which remained unexplained by the prosecution witnesses, that the evidence of the brothers of deceased who were chance witnesses has been deliberately introduced to build up the prosecution case and that it is highly improbable that the incident had taken place in the manner in which it was put forward by the prosecution. It is further companytended that the First Information Report based on the alleged statement made by the deceased to Head Constable PW12 is number acceptable as PW12 admitted that FIR was prepared after companysultation with the superior officers and that the companytents of the statement were number made known to the witnesses who signed it. Referring to the dying declaration before the Magistrate PW2 it is submitted that it was highly doubtful whether the patient who would have been administered drugs to abate the pain would be in a position to make the statement at midnight and that in any case numberreliance can be placed on it in the absence of examination of the doctor testifying to the companysciousness of the patient. It is finally submitted that the appellants cannot be found guilty of the offence under Section 302 and that there is numberscope to invoke Section 34 IPC. The learned companynsel appearing for the State while refuting these companytentions submits that there is trust-worthy evidence of eye-witnesses apart from the dying declaration recorded by the Magistrate and that there are numbergrounds to interfere with the companycurrent findings of fact. He submits that petrol was detected on the skin of the deceased and this fact goes to companyroborate the prosecution version. As regards the injuries, it is pointed out that the accused had motive to cause harm to the deceased by reason of previous enimity. It is then submitted that the injuries sustained by the accused were simple in nature but in order to create evidence, the two accused remained in hospital for a long timewhich fact was adversely companymented upon by the trial companyrt. Under the circumstances, it is companytended that the number-explanation of the simple injuries on the accused does number affect the prosecution case. It is also submitted that the appellants did number even put forward a case in companyformity with the companyplaint lodged by them on the date of incident. The two eyewitnesses are brothers of the deceased. According to them, they happened to be at the spot by chance at the time when the incident took place. As per PW1s version, he was returning after making purchase of some provisions from the shop of Thomas whereas his deceased brother was going towards the shop of Thomas. He stated in the chief examination that when his brother had reached the spot in front of the 2nd accused Rajagopal, the 1st accused Vijaya Kumar attacked his brother by hitting a bottle on his head and the liquid therefrom spread over the body. A3 A4 who were acquitted restrained his brother from moving. At that juncture, the 2nd accused Rajagopal threw a burning kerosene lamp from the shop which ignited the fire. Thereafter, his younger brotherPW3 rushed to the scene from another nearby shop and tried to put off the fire. When he and his younger brother tried to rescue their brother under flames, the 2nd accused stabbed him PW1 on his chest and shoulders with a knife. Thereafter, PW3 and PW4 PW4 declared hostile by the prosecution took him and his deceased brother to the hospital in an auto-rickshaw. This is the version of PW1 in the chief examination. In the cross examination, a somewhat different version was given as regards the manner of attack. He stated that the accused four in number followed his elder brother from east to west and waylaid him. PW1 apparently tried to paint a picture of planned attack by the four accused persons. But, numberreasonable inference of premeditated attack can be drawn having regard to the facts and circumstances apparent from the evidence on record. First of all, the involvement of A3 and A4 in the attack against the deceased was ruled out by the trial Court and High Court. In the dying declaration, it was number stated that any of the accused caught hold of the deceased. Secondly, the pre-concerted attack, if it were true, would number have happened in the manner in which PW1 narrated. Breaking open the bottle companytaining some liquid substance by hitting it on the head which did number even result in any visible injury and A2 then picking up a lighted kerosene lamp and throwing it at him, do number support the theory of planned attack with an intention to kill him. Such a companyrse of companyduct is number companysistent with the inference that the two appellants were waiting to kill him. The fact that the accused also suffered injuries which are number negligible shows that there would have been some scuffle and exchange of blows, but the details thereof are number forthcoming. Moreover, there are some circumstances casting a doubt on the prosecution version of A1 pouring petrol on the deceased by breaking the bottle in an unusual manner by hitting it on the head of the deceased. The broken pieces of glass bottle are supposed to have been recovered by the Sub-Inspector of PolicePW13 at the spot but he did number depose as to how he identified it as the bottle used in the companyrse of attack. It is number his case that any witness had pointed out the same. Above all, the prosecution version that the liquid which came out of the bottle was petrol, cannot be relied upon for more than one reason. The smell of a companymon inflammable substance like petrol or kerosene would have been easily sensed by the witnesses. Even the DoctorPW9 companyld number find the smell of kerosene or petrol or any other inflammable liquid on the body of the deceased. In the dying declaration before the Magistrate, the deceased merely stated that the 1st accused hit him on the head with a bottle. No doubt, the Chemical Examiners report Ext.P28 reveals that he detected petrol on the pieces of black lumps sent to him in a paper parcel by the Judicial Magistrate, Kuzhithurai. As seen from Ext.P26, the Inspector of Police sent a requisition to the Judicial Magistrate for sending the case properties mentioned therein for examination by the Chemical Examiner on 10.10.1994 which was nearly three months after the postmortem. Curiously, there is numberevidence to the effect that the items sent to the Magistrate for onward transmission to the Chemical Examiner were the same that were handed over to him by PW9 and that they were sealed by the hospital authorities. Though PW9 stated that the skin taken from the leg was preserved in Sodium Chloride solution for chemical analysis, he did number state that any seal was affixed thereon and handed over to the Inspector. The I.O.PW14 who sent the requisition to the Magistrate or any other Police Officer did number state that he received the preserved sample of skin from the hospital with the seal of the hospital. Even if the sample was companylected from the hospital, the possibility of meddling with it in the absence of seals cannot be ruled out especially when there was a time lag of nearly three months in sending the article to the Magistrate. No doubt, a suggestion on these lines was number put to the I.O. but the question of giving suggestion would arise only if the I.O. had deposed to the factum of companylecting the sample from the hospital and sending it to the Magistrate in the same form. It is, therefore, number safe to rely on the Chemical Examiners report to reach a companyclusion that petrol was splashed on the deceased by A-1 before the burning lamp was thrown at him by A-2. The prosecution case is sought to be established by two eye-witnesses, namely, PW-1 and 3 who are the brothers of the deceased and the dying declaration-Exhibit P-2. There is a serious doubt as to whether PW-3 had witnessed the occurrence. In the Chief examination PW3 stated that at the time of occurrence, he was working in the shop of Radha Krishnan which is close to the place of incident but in cross-examination, he stated that he was running a fire-wood shop on his own. Though he was one of the persons who took the deceased to the hospital, a doubt looms large whether he was on the spot when the occurrence took place. However, there remains the evidence of PW-1. But, we cannot place wholesale reliance on his evidence, as he does number companye forward with a truthful story of what had actually happened. His version about the manner of attack by the four accused persons and the numberexplanation of injuries on the accused 1,2 and 4 raises some doubts on the credibility of his entire version. At the same time his version about the incident broadly accords with the companytents of the dying declaration. His evidence cannot therefore, be eschewed in totality. The dying declaration recorded by the Judicial Magistrate cannot be assailed on any germane ground. We cannot accept the companytention of the learned companynsel for the appellants that the deceased would number have been in a position to sustain his companysciousness and give a statement narrating the details of the incident. The evidence of the Magistrate, PW 2 is unequivocal that the deceased was companyscious and was able to answer the questions. The certificate of the doctor Dr. Lalita Kumari who was with him was also obtained on the dying declaration. If some persons other than the accused attacked and burnt him there is numberreason why the deceased should have thought of implicating the accused while leaving out the real culprits. The learned companynsel for the appellants then companytended that the number-explanation of the injuries which the accused No.1 received in the companyrse of the same incident makes a dent on the prosecution case as the genesis of the incident was suppressed. It is pointed out that one of the injuries caused to accused No.1 was a deep lacerated injury of 6 long x 2 wide on the left leg and the accused remained in the hospital for 21 days, as seen from the evidence of PW8. It is further pointed out that the Fire Officer PW7 found A1 in an injured companydition lying on the ground inside the shop. The companytention of the learned companynsel though plausible cannot be sustained. The fact remains that the injury was simple in nature and numberfracture was found on x-ray. The trial Court rightly companymented that A1 would number have remained in the hospital for such a long time for genuine reasons. The treatment of a simple injury does number, by any standards require 21 days of hospitalization. Evidently, he wanted to find out an escape route to wriggle out of the companyplaint against the accused. Coming to the evidence of PW 7, it is unbelievable that he would remain inside the shop which according to PW 7 partially caught fire. It is thus clear that the injuries received by accused No.1 were simple in nature and the number-explanation of those injuries by itself cannot throw reasonable doubt on the prosecution case. It is worthy of numbere that the companynter companyplaint given by the accused is itself a tacit admission that the incident did take place. The deceased got burnt in the companyrse of that incident. There is numberhing to indicate that the accused apprehended danger and, therefore, acted in self defence. The companytention that the FIR was fabricated in view of what has been stated by PW 12, has numbermerit. The FIR only incorporates the statement recorded by PW 12 at the hospital. The fact that he companysulted the superior officials before formally recording the FIR does number mean that any changes or interpolations were introduced. The next question is what are the companyclusions to be drawn as regards the offences companymitted by the two appellants, going by the version in the dying declaration companypled with the evidence of PW 1 to the extent it is in companyformity with the dying declaration. The accused No.1 hit the deceased on his head with a bottle. Assuming that some liquid spread over the body, there is numbersatisfactory evidence to establish that it was petrol or kerosene or such other highly inflammable liquid. This aspect we have already adverted to. If the idea of A1 was to pour some inflammable liquid on the body of the deceased, in all probability, he would number have resorted to the odd way of hitting the bottle companytaining offensive liquid on his head. In the dying declaration there is numberreference to the fact that any inflammable liquid spilled over from the bottle. Even if some liquid came out of the bottle as per the version of PW1, it cannot be taken for granted that it was inflammable liquid. Coming to the act of the 2nd accused in throwing a burning kerosene lamp soon after the attack of A1 with bottle, we are inclined to think that it was a random act resorted to by the 2nd accused at the spur of the moment, apparently to cause harm to the deceased. It was number a pre-planned act done with the definite intention of causing death. It is number the case of the prosecution that A2 went close to the deceased and lit up his clothes with the kerosene lamp. Hurling a small burning lamp towards a person may number definitely cause fire to the clothes. No doubt it was a dangerous act and it was likely to cause fire. But in view of the fact that the candle like lamp companyes into companytact with the clothes of the targeted person for a split second, it may or may number be in a position to ignite the fire. A person throwing the kerosene lamp in that fashion cannot at any rate be imputed with the intention to cause the death or causing such bodily injury as is likely to cause death. He can only be imputed with the knowledge that by such a dangerous act, he was likely to cause death. The overt act of accused No.2 in throwing the burning kerosene lamp at the deceased would, in our view, give rise to the offence of culpable homicide number amounting to murder punishable under Part II of Section 304. The discussion supra also leads to the inference that the appellants would number have shared the companymon intention though the companymon intention companyld spring up at the spot. One accused hitting the deceased with a bottle on his head which did number cause even a visible injury and the other accused throwing a burning kerosene lamp from a distance cannot be said to be acts done in furtherance of companymon intention to cause the death of Rajeswaran. These are random acts done without meeting of minds. They can only be held guilty for the individual overt acts. A2 is, therefore, liable to be companyvicted under Section 304 Part II . Accordingly, he is companyvicted and sentenced to undergo imprisonment for seven years and to pay a fine of Rs.500/-. In default of payment of fine, he shall undergo imprisonment for a further period of three months. His companyviction and sentence under Section 302 IPC is set aside. Appellant No.1 A-1 can only be companyvicted under Section 323 for causing hurt to the deceased by hitting him with a bottle. He is sentenced to undergo imprisonment for six months. The evidence in regard to the attack on PW 1 by appellant No.1 with a knife which caused incised wounds to PW 1 is quite companyent and companyvincing. The companyviction under Section 324 and the sentence of 1 year imposed by trial companyrt, as far as A1 is companycerned, is companyfirmed. Both the sentences shall run companycurrently. A-1 is acquitted of the charge under Section 302. We are informed that appellant No.1 has so far undergone imprisonment of more than 1 year. Hence, we direct that A-1 Vijaya Kumar shall be set at liberty forthwith. Before closing, we may add that the High Court readily assumed, without analyzing the evidence on record that the bottle with which the deceased was hit companytained petrol.

ANIL R. DAVE, J. Being aggrieved by the judgment and order passed in Contempt Case No.58 of 2005 on 10.08.2005 by the High Court of Andhra Pradesh at Hyderabad, this appeal has been filed by the appellant, who has been held guilty of companytempt of Court and has been sentenced to simple imprisonment for one week and to pay a fine of Rs.2,000/-. It is pertinent to numbere that the appellant has already undergone the sentence. Undisputed facts giving rise to the present litigation in a nutshell are as under The appellant had given an undertaking in I.A. No.11 of 1985 in O.S. No.231 of 1972 before the IXth Assistant Judge, City Civil Court, Hyderabad that he would return the documents on an undertaking to produce them whenever directed. The mother of the appellant, Late Sharda Bai was a litigant in the afore-stated case, which had been disposed of in 1981. Some of the documents, which had been produced by the mother of the appellant in the said case, were required by her and as she was unable to remain present before the Court due to her old age, she had requested the appellant to make an application on her behalf, for return of the documents and, accordingly, the appellant had made an application to the Court for return of the documents, which had been produced by Late Sharda Bai, the mother of the appellant. While returning the documents, the appellant was asked to give an undertaking to the Court that the said documents would be produced by him as and when the same would be required by the Court. The said documents, which were handed over to the appellant, were given by him to his mother, Late Sharda Bai. The said documents were required in I.A. No.632 of 2001 in O.S. No.231 of 1972, which was pending in the Court of IXth Junior Civil Judge, Civil Court at Hyderabad. By an affidavit dated 5.10.2001, Late Sharda Bai had admitted the fact that the said documents were given to her by the appellant and she had further stated in the said affidavit that the appellant in the said proceedings had numberright to get the said documents. Thus, it is an admitted fact that the present appellant had handed over the said documents to his mother Late Sharda Bai, who had right to retain the same as the documents were produced by her. It is also an admitted fact that Sharda Bai expired on 02.06.2004. When the appellant was asked to produce the said documents as per the undertaking given by him to the companyrt, the appellant had submitted before the companyrt that he had already handed over the said documents to Late Sharda Bai, who had expired on 02.06.2004 and he had further submitted that his house was badly hit by the cyclone in the year 1999, as a result of which his house was submerged into the flood water companysequent to that it was companylapsed as his house was built up of mud and companyered with asbestos sheets resulting most of their belongings were vanished. Thus, the said documents were neither with the appellant number were they available at that time. According to the appellant, the case in which the said documents were required, was filed by the relatives of the appellant and they had filed an application for production of the said documents to pressurise the appellant in their family affairs. Thus, it was the case of the appellant before the Court that it was impossible for him to return the documents handed over to him as the said documents were handed over by him to the rightful owner of the documents and the documents were also destroyed. As the matter was taken up seriously by the Court companycerned, reference was made for initiating companytempt proceedings against the appellant as the documents were number returned as per the undertaking and the matter was placed before the High Court and by virtue of the impugned order, the High Court came to the companyclusion that the appellant was guilty of companytempt of companyrt and therefore, the appellant has been punished. Upon hearing the learned companynsel appearing for the parties, we are of the view that there is numberwillful breach of the undertaking given to the companyrt by the appellant, for which he can be held guilty of companymitting companytempt of the Court. In the instant case, it is an admitted fact that the documents had been handed over by the appellant to his mother, Late Sharda Bai, who was the rightful owner of the said documents and the said fact was admitted by his mother by filing an affidavit in another legal proceedings. Subsequently, the said documents had been destroyed because of the flood and therefore, it was impossible for the appellant to return the same to the Court. Section 2 b of the Contempt of Courts Act, 1971 reads as under 2 b civil companytempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a companyrt or willful breach of an undertaking given to a companyrt Upon perusal of the above mentioned definition of civil companytempt, it is very clear that so as to hold somebody guilty of companytempt of companyrt, the companycerned person must have willfully disobeyed any judgment, decree, direction, order, writ or any other process of a companyrt or should have willfully companymitted breach of an undertaking given to a companyrt. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had numberintention of companymitting breach of the undertaking given to the companyrt. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had companylected the same from the companyrt and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the companyrt should number have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would number be fair on the part of a companyrt to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of companytempt.

Sathasivam, CJI. Leave granted. This appeal is directed against the final judgment and order dated 19.12.2008 passed by the High Court of Delhi at New Delhi in Writ Petition No. 15828 of 2006 wherein the High Court interpreted Section 33 of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 in short the Act and issued various directions to be companyplied with by the appellants herein. Brief facts National Federation of the Blind-Respondent No. 1 herein is an apex organization and a society registered under the Societies Registration Act, 1860, having its Head Office at New Delhi and is working for the protection of the rights of the visually challenged. In the year 2006, Respondent No. 1 herein filed a writ petition before the High Court in public interest seeking implementation of Section 33 of the Act alleging that the appellants herein have failed to provide reservation to the blind and low vision persons and they are virtually excluded from the process of recruitment to the Government posts as stipulated under the said Act. In the above backdrop, it is relevant to mention that way back in 1977, the erstwhile Ministry of Social Welfare, Government of India, made reservation in favour of the following three categories of disabled persons in Group C D posts to the extent of 1 per cent each for the i Blind Hearing and Speech Impairment and iii persons suffering from locomotor disability. In the year 1986, the Department of Personnel Training DoPT , directed all the departments to take into account both identified and unidentified posts for working out the total number of vacancies to be reserved for each of the disabled categories. In spite of the above said executive order, various government departments and public sector undertakings did number give effect to the scheme of reservation which companypelled Respondent No. 1 herein to organize a nation wide agitation, as a result of which, an agreement was arrived at between the parties on 27.08.1987 to undertake a Special Recruitment Drive for clearing up the backlog of vacancies. On 07.02.1996, the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 was brought into force making reservation of at least 3 percent posts in all government establishments to the extent of 1 per cent each for the persons suffering from i blindness or low vision ii hearing impairment and iii locomotor disability or cerebral palsy. After enactment of the said Act, Union of India issued various orders for ensuring proper implementation of the provisions of the Act for the persons with disabilities. Respondent No. 1 herein, by filing the above said petition before the High Court asserted that despite statutory provisions and various executive orders, discrimination against the persons with disabilities companytinued in filling up the vacancies in various government departments whereas it was companytended by the other side that the Office Memorandum OM dated 29.12.2005, issued by the Department of Personnel Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities. Vide order dated 19.12.2008, the High Court disposed of the petition directing the Union of India to modify the OM dated 29.12.2005 being inconsistent with the provisions of Section 33 of the Act and issued several other directions. Being aggrieved of the above, the appellants have preferred this appeal by way of special leave before this Court. Tamil Nadu Handicapped Federation Charitable Trust, Smt S. Rajeswari and Association for Physically Challenged People Ordnance Clothing Factory filed applications for impleadment. Vide order dated 22.07.2011, this Court did number allow them to implead but to act as intervenors in the proceedings. Heard Ms. Indra Jaisingh, learned Additional Solicitor General for the Union of India, Mr. S.K. Rungta, learned senior companynsel R-1 appearing in person and Mr. R. Prabhakaran, learned companynsel for Intervenors. Submissions Ms. Indra Jaisingh, learned Additional Solicitor General for the Union of India, after taking us through various provisions of the Act and OM s issued by the Government of India submitted that the impugned judgment of the High Court is against the provisions of the Act. She further pointed out that the finding of the High Court that in terms of Section 33 of the Act, 3 reservation for the disabled persons has to be companyputed on the basis of total strength of the cadre, i.e., both identified as well as unidentified posts is erroneous. In any event, according to her, the direction of the High Court to work out backlog vacancies for the disabled persons on the total cadre strength in different establishments within one month from the date of the order is impractical and number executable. It is further highlighted that according to Section 33 of the Act, reservation to the persons with disabilities in an establishment shall be 3 of the vacancies arising in the posts which are identified for the persons with disabilities. The High Court, by the impugned judgment, disturbed the very basic system of the reservation of posts for the persons with disabilities. She further highlighted that the reservation for Group C and D posts is being calculated on the basis of the vacancies in identified as well as unidentified posts prior to the Act came into existence and in view of the provisions of Section 72 of the Act, companytinued in the same way, however, reservation for Group A and B posts is being calculated on the basis of the vacancies for identified posts as per the provisions of the Act. On the other hand, Mr. S.K. Rungta, learned senior companynsel R-1 appearing in person submitted that in terms of the provisions of the Act, more particularly, Sections 32 and 33 of the Act, it is obligatory on the part of the Government establishments to provide at least 3 reservation of posts in the total cadre strength and number in the identified vacancies. He further pointed out that though the Act was passed in 1995 since then the provisions have number been strictly implemented. He prayed for further time bound direction for implementation of the same. Mr. R. Prabhakaran, learned companynsel for intervenors reiterated the submissions made by Mr. S.K. Rungta. We have perused all the relevant materials and companysidered the rival submissions. Relevant Provisions In order to answer the rival companytentions, it is desirable to quote the relevant provision of the Act. Sections 2 a , 2 i , 2 j and 2 k of the Act read as under 2 a appropriate Government means,- i in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board companystituted under the Cantonment Act, 1924 2 of 1924 , the Central Government ii in relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government iii in respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government iv in respect of the State Co-ordination Committee and the State Executive Committee, the State Government 2 i Disability meansi blindness ii low vision iii leprosy-cured iv hearing impairment v locomotor disability vi mental retardation vii mental illness 2 j employer means,- i in relation to a Government, the authority numberified by the Head of the Department in this behalf or where numbersuch authority is numberified, the Head of the Department and ii in relation to an establishment, the Chief Executive Officer of that establishment 2 k establishment means a companyporation established by or under a Central, Provincial or State Act, or an authority or a body owned or companytrolled or aided by the Government or a local authority or a Government companypany as defined in section 617 of the Companies Act, 1956 1 of 1956 and includes Departments of a Government Among the above definitions, we are more companycerned with the definition of establishment under Section 2 k of the Act, which is an exhaustive definition and companyers i a companyporation established by or under a Central, Provincial or State Act, or ii an authority or a body owned or companytrolled or aided by the Government or a local authority, or iii a Government companypany as defined in Section 617 of the Companies Act, 1956 and Departments of a Government. Chapter VI of the Act deals with the employment of persons with disabilities. The relevant Sections of the said Chapter are as under- Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall- a identify posts, in the establishments, which can be reserved for the persons with disability b at periodical intervals number exceeding three years, review the list of posts identified and up-date the list taking into companysideration the developments in technology. Reservation of Posts - Every appropriate Government shall appoint in every establishment such percentage of vacancies number less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering fromblindness or low vision hearing impairment locomotor disability or cerebral palsy, in the posts identified for each disability Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by numberification subject to such companyditions, if any, as may be specified in such numberification, exempt any establishment from the provisions of this section. Vacancies number filled up to be carried forward.- Where in any recruitment year any vacancy under section 33, cannot be filled up due to number-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is number available, it may first be filled by interchange among the three categories and only when there is numberperson with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government. In exercise of the powers companyferred by sub-sections 1 and 2 of Section 73 of the Act, the Central Government enacted the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Rules, 1996. After enactment of the above Act, in order to companysolidate the existing instructions in line with the provisions of the Act, on 29.12.2005, Government of India, Department of Personnel and Training, issued certain instructions by way of an Office Memorandum OM , with regard to the reservation for the persons with disabilities physically handicapped persons in posts and services. The said Office Memorandum specifically states that it shall supersede all previous instructions issued on the subject so far. Respondent No. 1 herein has companymended various clauses of the OM dated 29.12.2005. The relevant clauses of the same are extracted hereinbelow QUANTUM OF RESERVATION Three percent of the vacancies, in case of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from i blindness or low vision, ii hearing impairment and iii locomotor disability or cerebral palsy in the posts identified for each disability Three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direct recruitment, if any, does number exceed 75, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from i blindness or low vision, ii hearing impairment and iii locomotor disability or cerebral palsy in the posts identified for each disability. EXEMPTION FROM RESERVATION If any Department Ministry companysiders it necessary to exempt any establishment partly or fully from the provisions of reservation for persons with disabilities of which one percent each shall be reserved for persons suffering from i blindness or low vision, ii hearing impairment and iii locomotor disability or cerebral palsy in the posts identified for each disability, it may make a reference to the Ministry of Social Justice and Employment giving full justification for the proposal. The grant of exemption shall be companysidered by an Inter-Departmental Committee set up by the Ministry of Social Justice and Empowerment. IDENTIFICATION OF JOBS POSTS The Ministry of Social Justice and Empowerment have identified the jobs posts suitable to be held by persons with disabilities and the physical requirement for all such jobs posts vide their numberification number 16-25/99.NII dated 31.5.2001. The jobs posts given in Annexure II of the said numberification as amended from time to time shall be used to give effect to 3 per cent reservation to the persons with disabilities. It may, however, be numbered that The numberenclature used for any job post shall mean and include numberenclature used for other companyparable jobs posts having identical functions. The list of jobs posts numberified by the Ministry of Social Justice Empowerment is number exhaustive. The companycerned Ministries Departments shall have the discretion to identify jobs posts in addition to the jobs posts already identified by the Ministry of Social Justice Empowerment. However, numberMinistry Department Establishment shall exclude any identified job post from the purview of reservation at its own discretion. If a job post identified for persons with disabilities is shifted from one group or grade to another group or grade due to change in the pay-scale or otherwise, the job post shall remain identified. COMPUTATION OF RESERVATION Reservation for persons with disabilities in case of Group C and Group D posts shall be companyputed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group C posts in an establishment shall be companyputed by taking into account the total number of vacancies arising in Group C posts for being filled by direct recruitment in a recruitment year both in the identified and number-identified posts under the establishment. The same procedure shall apply for Group D posts. Similarly, all vacancies in promotion quota shall be taken into account while companyputing reservation in promotion in Group C and Group D posts. Since reservation is limited to identified posts only and number of vacancies reserved is companyputed on the basis of total vacancies in identified posts as well as unidentified posts , it is possible that number of persons appointed by reservation in an identified posts may exceed 3 percent. Reservation for persons with disabilities in Group A posts shall be companyputed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment. The same method of companyputation applies for Group B posts. EFFECTING RESERVATION - MAINTENANCE OF ROSTERS a all establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining effecting reservation for the disabled - one each for Group A posts filled by direct recruitment, Group B posts filled by direct recruitment, Group C posts filled by direct recruitment, Group C posts filled by promotion, Group D posts filled by direct recruitment and Group D posts filled by promotion. Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, companyprising the following points 1st Block - point No.1 to point No.33 2nd Block - point No.34 to point No.66 3rd Block - point No.67 to point No.100 Points 1, 34, and 67 of the roster shall be earmarked reserved for persons with disabilities - one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts. All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point No.1 is number identified for the disabled or the head of the establishment companysiders it desirable number to fill up by a disabled person or it is number possible to fill up that post by the disabled for any other person, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 persons with disabilities. There is a possibility that numbere of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also number suitable for any category, three vacancies shall be filled as reserved from the third block companytaining points from 67 to 100. This means that if numbervacancy can be reserved in a particular block, it shall be carried into the next block. After all the 100 points of the roster are companyered, a fresh cycle of 100 points shall start. If the number of vacancies in a year is such as to companyer only one block or two, discretion as to which category of the disabled should be accommodated first shall vest in the head of the establishment, who shall decide on the basis of the nature of the post, the level of representation of the specific disabled category in the companycerned grade post etc. A separate roster shall be maintained for Group C posts filled by promotion and procedure as explained above shall be followed for giving reservation to persons with disabilities. Likewise two separate rosters shall be maintained for Group D posts, one for the posts filled by direct recruitment and another for posts filled by promotion. Reservation in Group A and Group B posts is determined on the basis of vacancies in the identified posts only. Separate rosters for Group A posts and Group B posts in the establishment shall be maintained. In the rosters maintained for Group A and Group B posts, all vacancies of direct recruitment arising in identified posts shall be entered and reservation shall be effected the same way as explained above. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT Reservation for each of the three categories of persons with disabilities shall be made separately. But if the nature of vacancies in an establishment is such that a person of a specific category of disability cannot be employed, the vacancies may be interchanged among the three categories with the approval of the Ministry of Social Justice and Empowerment and reservation may be determined and vacancies filled accordingly. If any vacancy reserved for any category of disability cannot be filled due to number-availability of a suitable person with that disability or, for any other sufficient reason, such vacancy shall number be filled and shall be carried forward as a backlog reserved vacancy to the subsequent recruitment year. In the subsequent recruitment year the backlog reserved vacancy shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that disability is number available, it may be filled by interchange among the three categories of disabilities. In case numbersuitable person with disability is available for filling up the post in the subsequent year also, the employer may fill up the vacancy by appointment of a person other than a person with disability. If the vacancy is filled by a person with disability of the category for which it was reserved or by a person of other category of disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year. HORIZONTALITY OF RESERVATION FOR PERSONS WITH DISABILITIES Reservation for backward classes of citizens SCs, STs and OBCs is called vertical reservation and the reservation for categories such as persons with disabilities and exservicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation in what is called interlocking reservation and person selected against the quota for persons with disabilities have to be placed in the appropriate category viz. SC ST OBC General candidates depending upon the category to which they belong in the roster meant for reservation of SCs STs OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with disabilities and out of two persons with disabilities appointed, one belongs to a Scheduled Caste and the other to general category then the disabled SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate against unreserved point in the relevant reservation roster. In case numbere of the vacancies falls on point reserved for the SCs, the disabled candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs. Since the persons with disabilities have to be placed in the appropriate category viz. SC ST OBC General in the roster meant for reservation of SCs STs OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with disabilities to indicate whether they belong to SC ST OBC or General category. Clauses 21 and 22 of the said OM enable the Government for relaxation in age limit as well as standard of suitability. After the OM dated 29.12.2005, based on the representations made by Respondent No. 1 herein, another OM dated 26.04.2006 came to be issued. The details and the directions companytained in the said OM are as follows Dated the 26th April, 2006 OFFICE MEMORANDUM Sub Reservation for the Persons with Disabilities The undersigned is directed to say that the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 which came into existence on 01.01.1996 provides for reservation for persons with disability in the posts identified for three categories of disabilities namely i blindness or low vision, ii hearing impairment and iii locomotor disability or cerebral palsy. Instructions have also been issued by this Department for providing reservation for such persons. In spite of the Act and the instructions of this Department, vacancies were number earmarked reserved or were number filled by reservation in some establishments. The matter has been companysidered carefully and it has been decided that reservation for persons with disabilities should be implemented in right earnest and there should be numberdeviation from the scheme of reservation, particularly after the Act came into effect. In order to achieve this objective, all the establishments should prepare the reservation roster registers as provided in this Departments O.M. No. 36035/3/2004-Estt Res dated 29.12.2005 starting from the year 1996 and reservation for persons with disabilities be earmarked as per instructions companytained in that OM. If some or all the vacancies so earmarked had number been filled by reservation and were filled by able bodied persons either for the reason that points of reservation had number been earmarked properly at the appropriate time or persons with disabilities did number become available, such unutilized reservation may be treated as having been carried forward to the first recruitment year occurring after issue of this O.M. and be filled as such. If it is number possible to fill up such reserved vacancies during the said recruitment year, reservation would be carried forward for further two years, whereafter it may be treated as lapsed. It has been observed that some recruiting agencies declare in their advertisements that blind partially blind candidates need number apply and that separate examinations would be companyducted for visually handicapped candidates. Attention is invited to para 7 of this Departments O.M. No. 36035/3/2004-Estt Res dated 29.12.2005 which provides that persons with disabilities selected on their own merit will number be adjusted against the reserved share of vacancies. It means that persons with disabilities who are selected on their own merit have to be adjusted against the unreserved vacancies and reservation has to be given in addition. If visually handicapped candidates or any other category of handicapped candidates are debarred from applying on the ground that a separate examination would be companyducted for them, chances of handicapped candidates being selected on their own merit would be eliminated. Thus, debarring of any category of handicapped candidates in the above manner is against the provisions companytained in the aforesaid O.M. It is, therefore, requested that persons with disabilities should number be debarred from applying for the posts identified suitable for them and should be provided opportunity to companypete for the unreserved vacancies as well by holding a companymon examination. Contents of this O.M. may be brought to the numberice of all companycerned. Sd - G.Verma Deputy Secretary to the Govt. of India Another OM dated 10.12.2008, issued by the Department of Personnel and Training, was also brought to our numberice whereunder a Special Recruitment Drive to fill up the backlog reserved vacancies for the persons with disabilities was initiated. The said OM mainly speaks about filling up of backlog reserved vacancies. Relevant portion of the said OM is extracted hereinbelow Dated the 10th December, 2008 OFFICE MEMORANDUM Sub Special Recruitment Drive to fill up the backlog reserved vacancies for Persons with Disabilities The undersigned is directed to say that this Departments O.M. No. 36035/3/2004-Estt Res dated 29.12.2005 provides that if any vacancy reserved for any category of disability cannot be filled due to number-availability of a suitable person with that disability or for any other sufficient reason, such vacancy is number filled and is carried forward as a backlog reserved vacancy to the subsequent recruitment year. In the subsequent recruitment year, the backlog reserved vacancy is treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment and filled as such. However, if a suitable person with that disability is number available in the subsequent recruitment also, it may be filled by interchange among the three categories of disabilities, failing which by appointment of a person other than a person with disability. It may, thus, be seen that if a vacancy is earmarked reserved for any category of disability and a suitable person with that disability is number available to fill it up in the initial year of recruitment, it becomes a backlog reserved vacancy for first subsequent recruitment year. As per instructions existing prior to issue of O.M. dated 29.12.2005, if in any year, suitable physically handicapped candidates were number available to fill up a reserved vacancy, the vacancy was filled by an other category candidate and reservation was carried forward for a period of upto three recruitment years. In the event of number-availability of suitable persons with disabilities, the reserved vacancies were number kept unfilled. Thus there was numberprovision of backlog reserved vacancies of persons with disabilities prior to 29.12.2005. Nevertheless, it is possible that some Ministries Departments establishments might have kept some vacancies earmarked reserved for the persons with disability unfilled due to numberavailability of persons with disability. If there exist such vacancies, these will be treated as backlog reserved vacancies for the current recruitment year By issuing such directions, the Department of Personnel and Training directed all the Ministries Departments to launch a Special Recruitment Drive and fixed target dates for fulfilling various stages. Discussion In the light of the above statutory provisions as well as various clauses of the OM dated 29.12.2005, let us analyze whether the High Court was justified in passing the impugned judgment. Before adverting to the rival companytentions submitted by the appellants and the respondents, it is relevant to companyprehend the background and the objective of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995. India as a welfare State is companymitted to promote overall development of its citizens including those who are differently abled in order to enable them to lead a life of dignity, equality, freedom and justice as mandated by the Constitution of India. The roots of statutory provisions for ensuring equality and equalization of opportunities to the differently abled citizens in our companyntry companyld be traced in Part III and Part IV of the Constitution. For the persons with disabilities, the changing world offers more new opportunities owing to technological advancement, however, the actual limitation surfaces only when they are number provided with equal opportunities. Therefore, bringing them in the society based on their capabilities is the need of the hour. Although, the Disability Rights Movement in India companymenced way back in 1977, of which Respondent No. 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993-2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a companyprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz., the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a Special Employment Exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is number filled up due to number-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections. It is the stand of the Union of India that the Act provides for only 3 reservation in the vacancies in the posts identified for the disabled persons and number on the total cadre strength of the establishment whereas Mr. S.K. Rungta, learned senior companynsel R-1 appearing in person submitted that accepting the interpretation proposed by the Union of India will flout the policy of reservation encompassed under Section 33 of the Act. He further submitted that the High Court has rightly held that the reservation of 3 for differently abled persons in companyformity with the Act should have to be companyputed on the basis of the total strength of a cadre and number just on the basis of the vacancies available in the posts that are identified for differently abled persons, thereby declaring certain clauses of the OM dated 29.12.2005 as unacceptable and companytrary to the mandate of Section 33 of the Act. Two aspects of the impugned judgment have been challenged before this Court- The manner of companyputing 3 reservation for the persons with the disabilities as per Section 33 of the Act. Whether post based reservation must be adhered to or vacancy based reservation. Now let us companysider the reasoning of the High Court and the submissions made by the parties. Primarily, we would like to clarify that there is a sea of difference in companyputing reservation on the basis of total cadre strength and on the basis of total vacancies both inclusive of identified and unidentified in the cadre strength. At the outset, a reference to the impugned OM dated 29.12.2005 would, in unequivocal terms, establish that the matter in dispute in the given case is whether the latter method of companyputation of reservation will uniformly apply to the posts in Group A, B, C and D or will it be applicable only to Group C and D. The question pertaining to companyputation of reservation on the basis of total cadre strength does number even arise in the given circumstance of the case. However, the High Court, in the impugned judgment, went on to uphold the view that the companyputation of reservation must be on the basis of total cadre strength which is clearly erroneous on the face of it. Inadvertently, the respondents herein have also adopted the same line of argument in their oral and written submissions. As a result, the point for companysideration before this Court is whether the modus of companyputation of reservation on the basis of total number of vacancies both inclusive of identified and unidentified in the cadre strength will uniformly apply to Group A, B, C and D or will it be applicable only to Group C and D. It is the stand of the Union of India that for vivid understanding of the reservation policy laid down under Section 33 of the Act, it is essential to read together Sections 32 and 33 of the Act. It was also submitted that a companyjoint reading of the above referred sections, mandates only reservation of vacancies in the identified posts and number in all the posts or against the total number of vacancies in the cadre strength. However, it was also admitted that the companyputation of reservation is being done in respect of Group C and D posts on the basis of total number of vacancies both inclusive of identified and unidentified in the cadre strength since 1977. In fact, the abovesaid companytention has been raised in Govt. of India through Secretary and Anr. vs. Ravi Prakash Gupta Anr. 2010 7 SCC 626 and, therefore, it is numberlonger res integra. The question for determination raised in this case is whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. In the aforementioned case, the Government of India sought to companytend that since they have companyducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be companyputed and applied only with reference to the vacancies filled up from 2005 onwards and number from 1996 when the Act came into force. This Court, after examining the inter-dependence of Sections 32 and 33 viz., identification of posts and the scheme of reservation, rejected this companytention and held as follows- The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs companynter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act companyld be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade A and B posts in the I.A.S. was undertaken after the year 2005 is number of much substance. As has been pointed out by the High Court, neither Section 32 number Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said Section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our numberice on behalf of the petitioners. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the companying into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, numberappointments from the reserved categories companytained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and number for the purpose of making reservation. In other words, reservation under Section 33 of the Act is number dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been numbericed where on account of number-availability of candidates some of the reserved posts companyld remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did number arise and posts were number reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does number arise. We, therefore, see numberreason to interfere with the judgment of the High Court impugned in the Special Leave Petition which is, accordingly, dismissed with companyts. All interim orders are vacated. The petitioners are given eight weeks time from today to give effect to the directions of the High Court. In the light of the above pronouncement, it is clear that the scope of identification companyes into picture only at the time of appointment of a person in the post identified for disabled persons and is number necessarily relevant at the time of companyputing 3 reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta supra that Section 32 of the Act is number a precondition for companyputation of reservation of 3 under Section 33 of the Act rather Section 32 is the following effect of Section 33. Apart from the reasoning of this Court in Ravi Prakash Gupta supra , even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of 3 for differently abled persons should have to be companyputed on the basis of total vacancies in the strength of a cadre and number just on the basis of the vacancies available in the identified posts. There is numberambiguity in the language of Section 33 and from the companystruction of the said statutory provision only one meaning is possible. A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is every appropriate Government shall appoint in every establishment such percentage of vacancies number less than 3 for persons or class of persons with disability. It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3 vacancies in its establishments for persons with disabilities. In this light, the companytention of the Union of India that reservation in terms of Section 33 has to be companyputed against identified posts only is number tenable by any method of interpretation of this part of the Section. The second part of this section starts as follows of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment locomotor disability or cerebral palsy in the posts identified for each disability. From the above, it is clear that it deals with distribution of 3 posts in every establishment among 3 categories of disabilities. It starts from the word of which. The word of which has to relate to appointing number less than 3 vacancies in an establishment and, in any way, it does number refer to the identified posts. In fact, the companytention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. .identified posts in this very first part which deals with the statutory obligation imposed upon the appropriate Government to appoint number less than 3 vacancies for the persons or class of persons with disabilities. In our companysidered view, it is number plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3 among the three categories of disabilities. Further, in the last portion of the second part the words used are in the identified posts for each disability and number of identified posts. This can only mean that out of minimum 3 of vacancies of posts in the establishments 1 each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1 for each disability out of total 3 has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the companyputation of reservation is companypletely misconceived. The third part of the Section is the proviso which reads thus Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by numberification subject to such companyditions, if any, as may be specified in such numberification, exempt any establishment from the provisions of this section. The proviso also justifies the above said interpretation that the companyputation of reservation has to be against the total number vacancies in the cadre strength and number against the identified posts. Had the legislature intended to mandate for companyputation of reservation against the identified posts only, there was numberneed for inserting the proviso to Section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the Section subject to such companyditions companytained in the numberification to be issued in the Official Gazette in this behalf. Certainly, the legislature did number intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the companyputation is intended to be made against the identified posts. In this regard, another provision of the said Act also supports this interpretation. Section 41 of the said Act mandates the appropriate Government to frame incentive schemes for employers with a view to ensure that 5 of their work force is companyposed of persons with disabilities. The said section is reproduced hereinbelow Incentives to employers to ensure five per cent of the work force is companyposed of persons with disabilities.- The appropriate Government and the local authorities shall, within limits to their economic capacity and development, provide incentives to employers both in public and private sectors to ensure that at least five percent of their work force is companyposed of persons with disabilities. Thus, on a companyjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3 in the establishments of appropriate Government, the legislature intended to ensure 5 of representation in the entire work force both in public as well as private sector. Moreover, the intention of the legislature while framing the Act can also be inferred from the Draft Rights of Persons with Disabilities Bill, 2012, which is pending in the Parliament for approval. In Chapter 6 of the Bill, viz., Special Provisions for Persons with Benchmark Disabilities, similar sections like Sections 32 33 in the Act have been incorporated under Sections 38 and 39 which are as under- Section 38. Identification of Posts which can be Reserved for Persons with Benchmark Disabilities Appropriate Governments shall a identify posts in establishments under them which can be reserved for persons with benchmark disability as mentioned in section 39 b at periodical intervals number exceeding three years, review and revise the list of identified posts, taking into companysideration developments in technology. Section 39. Reservation of Posts for Persons with Benchmark Disabilities- Every appropriate Government shall reserve, in every establishment under them, number less than 5 of the vacancies meant to be filled by direct recruitment, for persons or class of persons with benchmark disability, of which 1 each shall be of all posts reserved for persons with following disabilitiesi blindness low vision with reservation of 0.5 of the vacancies for each of the two disabilities . ii hearing impairment speech impairment. iii locomotor disability including cerebral palsy, leprosy cured and muscular dystrophy. iv autism, intellectual disability and mental illness v multiple disabilities from among i to iv above including deaf blindness Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by numberification subject to such companyditions, if any, as may be specified in such numberification, exempt any establishment from the provisions of this section. If sufficient number of qualified persons with benchmark disabilities are number available in a particular year, then the reservation may be carried forward for upto the next three recruitment years, and if in such succeeding recruitment years also a suitable person with benchmark disability is number available, then the post in the fourth year may be first filled by interchange among the categories of disabilities and only when there is numberperson with any benchmark disability available for the post in that year, the vacancy may be filled by appointment of a person, other than a person with benchmark disability. A perusal of Sections 38 and 39 of the Bill clarifies all the ambiguities raised in this appeal. The intention of the legislature is clearly to reserve in every establishment under the appropriate Government, number less than 3 of the vacancies for the persons or class of persons with disability, of which 1 each shall be reserved for persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy in the posts identified for each disability. Admittedly, the Act is a social legislation enacted for the benefit of persons with disabilities and its provisions must be interpreted in order to fulfill its objective. Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it has to be interpreted according to the plain meaning of the said statutory provision. In the present case, the plain and unambiguous meaning of Section 33 is that every appropriate Government has to appoint a minimum of 3 vacancies in an establishment out of which 1 each shall be reserved for persons suffering from blindness and low vision, persons suffering from hearing impairment and persons suffering from locomotor or cerebral palsy. To illustrate, if there are 100 vacancies of 100 posts in an establishment, the companycerned establishment will have to reserve a minimum of 3 for persons with disabilities out of which at least 1 has to be reserved separately for each of the following disabilities persons suffering from blindness or low vision, persons suffering from hearing impairment and the persons suffering from locomotor disability or cerebral palsy. Appointment of 1 blind person against 1 vacancy reserved for him her will be made against a vacancy in an identified post for instance, the post of peon, which is identified for him in group D. Similarly, one hearing impaired will be appointed against one reserved vacancy for that category in the post of store attendant in group D post. Likewise, one person suffering from locomotor disability or cerebral palsy will be appointed against the post of Farash group D post identified for that category of disability. It was argued on behalf of Union of India with reference to the post of driver that since the said post is number suitable to be manned by a person suffering from blindness, the above interpretation of the Section would be against the administrative exigencies. Such an argument is wholly misconceived. A given post may number be identified as suitable for one category of disability, the same companyld be identified as suitable for another category or categories of disability entitled to the benefit of reservation. In fact, the second part of the Section has clarified this situation by providing that the number of vacancies equivalent to 1 for each of the aforementioned three categories will be filled up by the respective category by using vacancies in identified posts for each of them for the purposes of appointment. It has also been submitted on behalf of the appellants herein that since reservation of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre strength according to the OM dated 29.12.2005 but the actual import of Section 33 is that it has to be companyputed against identified posts only. This argument is also companypletely misconceived in view of the plain language of the said Section, as deliberated above. Even, for the sake of arguments, if we accept that the companyputation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does number distinguish the manner of companyputation of reservation between Group A and B posts or Group C and D posts respectively. As such, one statutory provision cannot be interpreted and applied differently for the same subject matter. Further, if we accept the interpretation companytended by the appellants that companyputation of reservation has to be against the identified posts only, it would result into uncertainty of the application of the scheme of reservation because experience has shown that identification has never been uniform between the Centre and States and even between the Departments of any Government. For example, while a post of middle school teacher has been numberified as identified as suitable for the blind and low vision by the Central Government, it has number been identified as suitable for the blind and low vision in some States such as Gujarat and JK etc. This has led to a series of litigations which have been pending in various High Courts. In addition, Para 4 of the OM dated 29.12.2005 dealing with the issue of identification of jobs posts in sub clause b states that list of the jobs posts numberified by the Ministry of Social Justice Empowerment is number exhaustive which further makes the companyputation of reservation uncertain and arbitrary in the event of acceptance of the companytention raised by the appellants. Another companytention raised by the appellants is that the companyputation of reservation against the total vacancies in the cadre strength in Group A B will violate the rule of 50 ceiling of reservation in favour of SC, ST and OBC as laid down by this Court in Indra Sawhney vs. Union of India and others AIR 1993 SC 477. This companytention is also number tenable and is against the abovesaid judgment. It is difficult to understand as to how the companyputation of reservation against total vacancies in the cadre strength in Group A and B will violate 50 ceiling when its companyputation on that basis in Group C and D will number violate the said ceiling. There is numberrationale of distinguishing between the manner of companyputation of reservation with regard to Group A and B posts on the one hand and manner of companyputation of reservation with regard to Group C and D posts on the other on this ground. A perusal of Indra Sawhney supra would reveal that the ceiling of 50 reservation applies only to reservation in favour of other Backward classes under Article 16 4 of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16 1 of the Constitution. In fact, this Court in the said pronouncement has used the example of 3 reservation in favour of persons with disabilities while dealing with the rule of 50 ceiling. Para 95 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rosters of reserved category or open category respectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has numberhing to do with the ceiling of 50. Para 95 is reproduced as follows- 95. all reservations are number of the same nature. There are two types of reservations, which may, for the sake of companyvenience, be referred to as vertical reservations and horizontal reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes under Article 16 4 may be called vertical reservations whereas reservations in favour of physically handicapped under Clause 1 of Article 16 can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more precise, suppose 3 of the vacancies are reserved in favour of physically handicapped persons this would be a reservation relatable to Clause 1 of Article 16. The persons selected against this quota will be placed in the appropriate category if he belongs to S.C. category he will be placed in that quota by making necessary adjustments similarly, if he belongs to open companypetition O.C. category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same Yet another companytention raised by the appellants is that the reservation for persons with disabilities must be vacancy based reservation whereas Respondent No. 1 herein companytended that it must be post based reservation as laid down by the High Court in the impugned judgment. Respondent No. 1 herein relied upon the heading of Section 33 of the Act, viz., Reservation of Posts, to propose the view that the reservation policy companytemplated under Section 33 is post based reservation. It is settled law that while interpreting any provision of a statute the plain meaning has to be given effect and if language therein is simple and unambiguous, there is numberneed to traverse beyond the same. Likewise, if the language of the relevant section gives a simple meaning and message, it should be interpreted in such a way and there is numberneed to give any weightage to headings of those paragraphs. This aspect has been clarified in Prakash Nath Khanna Anr. vs. Commissioner of Income Tax Anr., 2004 9 SCC 686. Paragraph 13 of the said judgment is relevant which reads as under It is a well-settled principle in law that the companyrt cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of companystruction is that the intention of the legislation must be found in the words used by the legislature itself. The question is number what may be supposed and has been intended but what has been said. Statutes should be companystrued, number as theorems of Euclid, Judge Learned Hand said, but words must be companystrued with some imagination of the purposes which lie behind them. See Lenigh Valley Coal Co. v. Yensavage. The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama and Padma Sundara Rao v. State of T.N It is clear that when the provision is plainly worded and unambiguous, it has to be interpreted in such a way that the Court must avoid the danger of a prior determination of the meaning of a provision based on their own preconceived numberions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. While interpreting the provisions, the Court only interprets the law and cannot legislate it. It is the function of the Legislature to amend, modify or repeal it, if deemed necessary. The heading of a Section or marginal numbere may be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent. However, when the Section is clear and unambiguous, there is numberneed to traverse beyond those words, hence, the headings or marginal numberes cannot companytrol the meaning of the body of the section. Therefore, the companytention of Respondent No. 1 herein that the heading of Section 33 of the Act is Reservation of posts will number play a crucial role, when the Section is clear and unambiguous. Further, the respondents heavily relied on a decision of the Constitution Bench in R.K Sabharwal and others vs. State of Punjab and others 1995 2 SCC 745 to substantiate their companytention. Para 6 reads as under- The expressions posts and vacancies, often used in the executive instructions providing for reservations, are rather problematical. The word post means an appointment, job, office or employment. A position to which a person is appointed. Vacancy means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a post in existence to enable the vacancy to occur. The cadre-strength is always measured by the number of posts companyprising the cadre. Right to be companysidered for appointment can only be claimed in respect of a post in a cadre. As a companysequence the percentage of reservation has to be worked out in relation to the number of posts, which form the cadre-strength. The companycept of vacancy has numberrelevance in operating the percentage of reservation. Adhering to the decision laid by the Constitution Bench in R.K Sabharwal supra , the High Court held as follows- The Disabilities Act was enacted for protection of the rights of the disabled in various spheres like education, training, employment and to remove any discrimination against them in the sharing of development benefits vis--vis number-disabled persons. In the light of the legislative aim it is necessary to give purposive interpretation to section 33 with a view to achieve the legislative intendment of attaining equalization of opportunities for persons with disabilities. The fact that the vacancy-based roster is to be maintained does number mean that 3 reservation has to be companyputed only on the basis of vacancy. The difference between the posts and vacancies has been succinctly pointed out in the Supreme Court decision in the case of K Sabharwal and Others vs state of Punjab and others AIR 1995 SC 1371 wherein it was held that the word post means an appointment, job, office or employment, a position to which a person is appointed. Vacancy means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a post in existence to enable the vacancy to occur. The cadre-strength is always measured by the number of posts companyprising the cadre. Right to be companysidered for appointment can only be claimed in respect of a post in a cadre. As a companysequence the percentage of reservation has to be worked out in relation to the number of posts which from the cadre-strength. The companycept of vacancy has numberrelevance in operating the percentage of reservation. Therefore, in our opinion, 3 reservation for disabled has to be companyputed on the basis of total strength of the cadre i.e. both identified as well as unidentified posts. However, the decision in R.K Sabharwal supra is number applicable to the reservation for the persons with disabilities because in the above said case, the point for companysideration was with regard to the implementation of the scheme of reservation for SC, ST OBC, which is vertical reservation whereas reservation in favour of persons with disabilities is horizontal. We harmonize with the stand taken by the Union of India, the appellant herein in this regard. Besides, the judgment in R.K Sabharwal supra was pronounced before the date on which the Act came into force, as a companysequence, the intent of the Act must be given priority over the decision in the above said judgment. Thus, in unequivocal terms, the reservation policy stipulated in the Act is vacancy based reservation. Conclusion Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job number because their disability companyes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable companyditions. They are denied the right to make a useful companytribution to their own lives and to the lives of their families and companymunity. The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today. Thus, after thoughtful companysideration, we are of the view that the companyputation of reservation for persons with disabilities has to be companyputed in case of Group A, B, C and D posts in an identical manner viz., companyputing 3 reservation on total number of vacancies in the cadre strength which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are companytrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum s in companysistent with the decision rendered by this Court. Further, the reservation for persons with disabilities has numberhing to do with the ceiling of 50 and hence, Indra Sawhney supra is number applicable with respect to the disabled persons.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 417 and 418 of 1963. Appeal by special leave from the judgment and order dated March 7, 1962, of the Mysore High Court in Writ Petition No. 1197 of 1960. K. Daphtary, Attorney-General for India, B. R. Ethiraulu Naidu, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant in G.A. No. 417/63 . K. Govindaraulu and R. Gopalakrishnan for the appellant in C.A.No. 418/63. K. Venkataranga Iyengar, I. B. Dadachanji O.C. Mathur, Ravinder Narain, for respondents. August 26, 1963. The judgment of the Court was delivered by GAJENDRAGADKAR J.--The petition from which these appeals by special leave arise was filed by the respondent, C.D. Govinda Rao, in the Mysore High Court under art. 226 of the Constitution. By that petition, he prayed that a writ of quo warranto be issued, calling upon Anniah Gowda to show cause as to under what authority he was holding the post of a Research Reader in English in the Central College, Bangalore. He also prayed for a writ of mandamus or other appropriate writ or direction calling upon the University of Mysore to appoint him Research Reader in the scale of Rs. 500-25-800. His case was that the appointment of Anniah Gowda to the post of Research Reader was illegal in the face of the prescribed qualifications and that he was qualified to be appointed to that post. That is why he wanted the appointment of Anniah Gowda to be quashed, and he asked for a writ, directing the University to appoint him in that post. To his petition, he impleaded the University of Mysore by its Registrar, and Anniah Gowda as the opposite party. The University of Mysore and Anniah Gowda disputed the validity of the claim made by the respondent. lie, urged that Anniah Gowda was properly appointed Research Reader and that the companytention made by the respondent that the said appointment was invalid was number justified. On these pleadings, evidence was led by both the parties in respect of their respective companytentions in the form of affidavits. The High Court has held that the appointment of Anniah Gowda was invalid and so it has quashed the Resolution of the Board of Appointment of the University of Mysore recommending his appointment and his directed that his appointment subsequendy made by the Chancellor of the University should be set aside. The High Court, however, refrained from granting the respondent a writ of mandamus, directing his appointment to the said if the appointment post, because it took the view that even of Anniah Gowda was set aside, it did number follow that the respondent would necessarily be entitled to that post. That question, according to the High Court, may have to be companysidered by the University and the Board afresh. The University and Anniah Gowda, then, moved the High Court for a certificate to appeal to this Court against its judgement, but the application was rejected. Thereupon the University and Anniah Gowda by separate applications moved this Court for special leave, and on special leave being granted to them, they have brought the two present appeals before us Civil Appeals 417 418 of 63 . In this judgment, we will describe the University and, Anniah Gowda as Appellants 1 and 2 respectively. It appears that on 31st July 1959, appellant No. 1 published an advertisement calling for applications for sit posts of Professors and six posts of Readers. Amongst them were included the post of Professor of English and the Reader in English. The qualifications prescribed for these posts are material and it is companyvenient to set them out at this stage Qualifications A First or High Second Class Masters Degree of an Indian University or an equivalent qualification of a Foreign University in the subject companycerned A Research Degree of a Doctorate Standard or published work of a high Standard Ordinarily, ten years number less than five years in any case experience of teaching post-graduate classes and guiding research in the case of Professors and at least five years experience of. teaching degree classes and independent research in the case of Readers The knowledge of regional language Kannada is companysidered as a desirable qualification. Preference will be given to candidates who have had experience in teaching and organization of research and have also done advanced research work. In accordance with s. 26 2 of the Mysore University Act, 1956 No. 23 of 1956 , as it then stood, a Board of Appointments was numberinated, companysisting of the Vice-Chancellor and two Specialists in English. These Specialists were Professor P. E. Dastoor of the Delhi University and Professor L. D. Murphy of Madras. The posts of Professor and Reader had been advertised in pursuance of a grant made to appellant No. 1 by the University Grants Commission. Four applications were received for the posts of Professors and Reader in English and these Applicants were interviewed by the Board on June 8, 1960. The Board had the advantage of companysulting Professor C.D. Narasimhiah, Principal, Maharajas College, Mysore. After taking into account the opinion expressed by Prof. Narasimhiah, the Board companysidered the academic qualifications of the four applicants and their performance at the interview and came to the companyclusion that numbere of them was fit enough to be appointed a Professor under the U.G.C. Scheme in grade 800- 1,250. Accordingly, the Board resolved that the said posts be kept vacant for the present and be readvertised. In regard to the filling of the post of Reader under the U.G.C. Scheme in the grade of 500-25-800, the Board, after companysidering all aspects of the case, came to the companyclusion that appellant No. 2 was the most suitably qualified person and unanimously resolved that he be appointed Reader in the said grade under the U.G.C. Scheme. This report was in due companyrse approved by the Chancellor on October 3, 1960, and after he was appointed to the post of Reader, appellant No. 2 assumed charge on October 31, 1960. Meanwhile, even before he assumed charge of his office, the respondent had filed his present petition on October 15, 1960, and he had claimed an injunction against appellant No. 1 from proceeding to fill the post, but since the post had already been filled up, he modified his claim and asked for a writ of quo warranto against appellant No. 2. That is how the main dispute which arose between the two appellants and the respondent was in regard to the validity of the appointment of appellant No. 2 to the post of Reader in English, and as we have already pointed out, the High Court upheld the companytentions of the respondent and quashed the appointment of appellant No. 2. The judgment of the High Court does number indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the companyditions which had to be satisfied before a writ companyld issue in such proceedings. As Halsbury has observed An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to, inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has numbertitle, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to companytrol the Executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to companytinue either with the companynivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo Halsburys Laws of England, 3rd ed., vol. 11, p. 145. warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or number. In the present case, it does number appear that the attention of the Court was drawn to this aspect of the matter. The judgment does number show that any statutory provision is for rules were placed before the Court and that in making the appointment of appellant No. 2 these statutory provisions had been companytravened. The matter appears to have been argued before the High Court on the assumption that if the appointment of appellant No. 2 was shown to be inconsistent with the qualification as they were advertised by appellant No. 1, that itself would justify the issue of a writ of quo warranto. In the present proceedings, we do number propose to companysider whether this assumption was well founded or number. We propose to deal with the appeals on the basis that it may have been open, to the High Court to quash the appointment of appellant No. 2 even if it was shown that one or the other of the qualifications prescribed by the advertisement published by appellant No. 1 was number satisfied by him. Realising the difficulty which he may have to face, Mr. S. Venkataranga lyengar for the respondent wanted to raise the companytention that the appointment of appellant No. 2 was made in companytravention of the statutory rules and ordinances framed by appellant No. 1. He attempted to argue that he had referred to the statutory rules and ordinances in the High Court, but, unfortunately, the same had number been mentioned or discussed in the judgment. We have carefully companysidered the affidavits filed by both the parties in the present proceedings, and we have numberhesitation in holding that at numberstage it appears to have been urged by the respondent before the High Court that the infirmity in the appointment of appellant No. 2 proceeded from the fact that the statutory rules and ordinances made by appellant No.1 had been companytravened. The affidavit filed by the respondent in support of his petition merely described the appointment of appellant No. 2 as being illegal, and significantly added that the said appointment of appellant No. 2 and the failure of the University to appoint the respondent, were illegal in the face of the prescribed qualifications, and these qualifications in the companytext undoubtedly referred to the qualifications published in the numberification by which the relevant post had been advertised. It appears that in one of the affidavits filed on behalf of appellant No. 1 reference was made to the rules framed under the Mysore University Act No. 23 of 1956 , and it was added that the appointment to the post of Reader in question had to be made in accordance with the regulations framed by the University Grants Commission under s. 26 1 e of the University Grants Commission Act, 1956. This was disputed by the respondent, and in that companynection, he alleged in a vague manner that all the appointments made by appellant No. 1 were regulated by the ordinances and rules framed under the Mysore University Act. Then, he alleged that the ordinances made in this regard by the Senate in their meeting held on August 19, 1959, were approved by the Chancellor in his letter dated January 22, 1960. Having made these allegations, numberattempt was made in the High Court to produce these ordinances and to show when they came into force. It appears that the statutory rules framed by appellant No. 1 under s. 26 1 received the approval of the Chancellor on January 22, 1960, but we do number know even today when they were published in the Gazette. Similarly, the ordinances framed were approved by the Chancellor on the same day, but we do number know when they came into force. The statutory rules, thus, framed and approved, companye into force on the date of the publication of the Mysore Gazette, and the ordinances companye into force from such date as the Chancellor may direct vide s. 42 5 of the Mysore University Act No. 23 of 1956 . Therefore, though some reference was made to the ordinances, numberattempt was made to show when the ordinances came into force and numberarguments appear to have been urged ,on that account. The judgment delivered by the High Court in the present proceedings is an elaborate judgment and we think it would be legitimate to assume that it does number refer to the statutory rules and ordinances for the simple reason that neither party relied on them and the. High Court had, therefore numberoccasion to examine them. In any case, we do number think it would be open to the respondent to take a ground about the effect of the statutory rules and ordinances for the first time in appeal. The petition, which he originally filed, when read with the affidavit made by him, does support this view and unambiguously shows that lie companyfined his attack against the validity of the appointment of appellant No. 2 solely to the ground that appellant No. 2 did number satisfy the qualification prescribed by the numberifications by which applications had been called for by appellant No. 1. That is the basis on which the High Court has dealt with this matter and that is the basis on which we propose to deal with it. Let us briefly indicate the findings recorded by the High Court before examining the merits of the companytentions raised by the appellants in these appeals. In this companynection, it is necessary to recall the four qualifications prescribed by the numberification. The last one which relates to the knowledge of the Kannada language is number in dispute and may be left out of companysideration. The first qualification is that the applicant must have a First or a high Second Class Masters Degree of an Indian University or an equivalent qualification of a foreign University in the subject companycerned. It appears that appellant No. 2 secured 50.2 per cent marks in his Masters Degree examination. It was urged by the respondent before the High Court that when 50 per cent is the minimum required for securing a second class, it would be idle to suggest that a candidate, who obtains 50.2 per cent, has secured a high Second Class Masters Degree, and so the respondent pleaded that the first companydition had number been satisfied by the appellant No. 2. The High Court has upheld this plea. In regard to the second qualification, it appears that appellant No. 2 has obtained a Degree of Master of Arts of the University of Durham. The High Court has held that in regard to this qualification, if the Board took the view that the appellant No. 2 satisfied that qualification, it would number be Just for the Court to differ from that opinion. In other words, the High Court did number make a finding in favour of the respondent in regard to qualification No. 2. In regard to the third qualification, the matter appears to have been debated at length before the High Court. Evidence was led by both the parties and the respondent seriously disputed the claim made by both the appellants that appellant No. 2 satisfied the test of five years experience of teaching Degree classes. The High Court examined this evidence and ultimately came to the companyclusion that though the material adduced by the appellants on this point was unsatisfactory, it companyld number make a finding in favour of the respondent. In this companynection, the High Court has severely criticised the companyduct of appellant No. 1 to which we will refer later. Thus, it is clear that substantially the High Court decided to quash the appointment of appellant No. 2 on the ground that it was plain that he did number satisfy the first qualification. In this companynection, the High Court has also criticised the report made by the Board and has observed that the Members of the Board did number appear to have applied their minds to the question which they were called upon to companysider. In our opinion, in companying to the companyclusion that appellant No. 2 did number satisfy the first qualification, the High Court is plainly in error. The judgment shows that the learned Judges companycentrated on the question as to whether a candidate obtaining 50 per cent marks companyld be said to have secured a high Second Class Degree, and if the relevant question had to be determined solely by reference to this aspect of the matter, the companyclusion of the High Court would have been beyond reproach. But what the High Court has failed to numberice is the fact that the first qualification companysists of two parts-the first part is a high Second Class Masters Degree of an Indian University, and the second part is its equivalent which is an equivalent qualification of a foreign University. The High Court does number appear to have companysidered the question as to whether it would be appropriate for the High Court to differ from the opinion of the Board when it was quite likely that the Board may have taken the view that the Degree of Master of Arts of the Durham University. which appellant No. 2 had obtained was equivalent to a high Second Class Masters Degree of an Indian University. This aspect of the question pertains purely to an academic matter and Courts would naturally hesitate to express a definite opinion, particularly, when it appears that the Board of experts was satisfied that appellant No. 2 fulfilled the first qualification. If only the attention of the High companyrt had been drawn to the equivalent furnished in the first qualification, we have numberdoubt that it would number have held that the Board had acted capriciously in expressing the opinion that appellant No. 2 satisfied all the qualifications including the first qualification. As we have already observed though the High Court felt some difficulty about the two remaining qualifications, the High Court has number rested its decision on any definite finding that these qualifications also had number been satisfied. On reading the first qualification, the position appears to be very simple but unfortunately, since the equivalent qualification specified by cl. a was apparently number brought to the numberice of the High Court, it has failed to take that aspect of the matter into account. On that aspect of the matter, it may follow that the Masters Degree of the Durham University secured by appellant No. 2, would satisfy the first qualification and even the second. Besides, it appears that appellant No. 2 has to his credit published works which by themselves would satisfy the second qualification. Therefore, there is numberdoubt that the High Court was in error in companying to the companyclusion that since appellant No. 2 companyld number be said to have secured a high Second Class Masters Degree of an Indian University, he did number satisfy the first qualification. It is plain that Masters Degree of the Durham University which appellant No. 2 has obtained, can be and must have been taken by the Board to be equivalent to a high Second Class Masters Degree of an Indian University, and that means the first qualification is satisfied by appellant No. 2. That being so, we must hold that the High Court was in error in issuing a writ of quo warranto, quashing the appointment of appellant No. 2. Before we part with these appeals, however, reference must be made to two other matters. In dealing with the case presented before it by the respondent, the High Court has criticised the report made by the Board and has observed that the circumstances disclosed by the report made it difficult for the High Court to treat the recommendations made by the experts with the respect that they generally deserve. We are unable to see the point of criticism of the High Court in such academic matters. Boards of Appointments are numberinated by the Universities and when recommendations made by them and the appointments following on them, are challenged before companyrts, numbermally the companyrts should be slow to interfere with the opinions expressed by the experts. There is numberallegation about mala fides against 38-2 S. C. India/64 the experts who companystituted the present Board and so, we think, it would numbermally be wise and safe for the companyrts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the companyrts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decisions. In dealing with companyplaints made by citizens in regard to appointments made by academic bodies, like the Universities, such an approach would number be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests Which would legitimately be applied in the case of writ of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a companysideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have companysidered is whether the appointment made by the Chancellor had companytravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinions expressed by the Board its recommendations on which the Chancellor has acted. In this companynection, the High Court has failed to numberice one significant fact that when the Board companysidered the claims of the respective applicants, it examined them very carefully and actually came to the companyclusion that numbere of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they companysidered the relevant factors carefully and ultimately came to the companyclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is number justified. It appears that the High Court was also dissatisfied with the companyduct of appellant No. 1 and its officers, and in fact, while dealing with the question about the length of the teaching experience of appellant No. 2, the High Court has observed that the material placed on record is of a doubtful nature characterised by a clear tendency to mislead the Court, if number an actual attempt to do so. The learned Attorney-General has companyplained that this criticism is number justified. In fact, after the judgment was pronounced, an application was made to the same learned Judges to expunge the criticism made against appellant No. 1, and in support of this application, Mr. Ethirajulu Naidu, who was then the Advocate-General and who had argued the matter before the High Court, made an affidavit, showing that appellant No. 1 companyld number be charged with having attempted to mislead the High Court. Even then, the High Court was number fully satisfied, and so in a judgment delivered by it on the application subsequently made to quash the said observations, the learned judges observed that they were willing to accept and did accept the assurance given by the learned Advocate-General that there was numberactual attempt made to mislead the Court. Even so, they held that the material placed before the Court companyld or did have a tendency to mislead, and that is the opinion which they thought even after hearing the learned Advocate- General, was well founded, at any rate, number unwarranted This criticism has been made by the High Court because when an affidavit was filed before it by Mr. Thimmaraju, the Gazatted Assistant of appellant No. 1, he produced on June 1, 1961, a statement from the Service Register of appellant No. 2. This extract purported to show that appellant No. 2 had more than five years teaching experience prescribed by the third qualification. The Register was then sent for by the High Court and examined, and it became clear that whereas the first four entries in the statement filed by the deponent were borne out by the said Register, the subsequent eight entries did number appear in that Register. Later when the High Court was moved, after the judgment was pronounced, for expunging the remarks, another document was produced. This purported to be the gazetted Officers Register, and the statements companytained in the extract filed by Thimmaraju appeared in that Register. The explanation given by Appellant No. 1 and the learned Advocate-General was that when appellant No. 2 was a number-gazetted servant, his service register was separately kept but in regard to Government gazetted servants, a general service Register was kept, and all the statements filed by Mr. Thimmaraju really companytained facts taken from the separate service Register of appellant No. 2 when he was a number-gazetted servant, and facts taken from the Government gazetted servants Register, after he became a gazetted servant. It is undoubtedly true that the statement filed by Thimmaraju seems to suggest that all the facts stated in the statement were gathered from service Register of appellant No. 2, and that, strictly, was number accurate at all. Therefore, on the inaccuracy of the statement made by Mr. Tlimmaraju, the High Court would have been justified in making an adverse companyment but in companysidering the question as to whether Thimmaraju or appellant No. 1 on whose behalf he made the affidavit, attempted or intended to mislead the Court, it is necessary to bear in mind other relevant facts. On the question about the length of the teaching career of appellant No. 2, appellant No. 2 had made a detailed affidavit on July 22, 1961. In this affidavit, he had set out the several teaching assignments he had held and the periods during which he held them, and these clearly show that his teaching experience of the prescribed character is much more than five years which is the minimum prescribed. It is remarkable that though the respondent purported to make a rejoinder to the affidavit filed by appellant No. 2, the details given by appellant No. 2 in regard to his teaching experience have number been specifically or categorically traversed by the respondent. Besides, it is significant that the Government gazetted officers Register, which was produced before the High Court later-, amply bears out the facts in the statement filed by Thimmaraju. Therefore, one thing is clear that the material fact about the length of the teaching experience of appellant No. 2 is fully established by the affidavit of appellant No,. 2 and even by the gazetted officers Register which was later produced, and so, it seems to us that the High Court need number have been so severe on appellant No. 1 when it observed that the material produced by appellant No. 1 had a tendency to mislead the Court, if number an actual attempt to do so. It is undoubtedly true that Thimmaraju should have looked into the record more carefully and should have stated clearly that the facts stated in the statement filed by him were taken partly from the individual service register of appellant No. 2 and partly from the Register, which is kept as a general Register for gazetted servants in the State. Therefore, we think there is some substance in the companytention made by the learned Attorney-General that the harsh criticism made by the High Court against appellant No. 1 is number fully justified. In the result, the appeals are allowed, the.

PATTANAIK,J. This appeal is directed against the Order dated 16th June, 2000, passed in Election Petition No. 29 of 1999. The aforesaid Election Petition had been filed by the appellant, challenging the validity of the election to the House of People from the Bangalore North Parliamentary Constituency, in which election, respondent No. 1 was declared to have been elected. In the election petition, the Election Commissioner, the Returning Officer and the Chief Electoral Officer of the State of Karnataka had been arrayed as respondents 6, 7 and 8. Those respondents filed an application before the High Court of Karnataka for their deletion inter alia on the ground that under Section 82 of the Representation of the People Act, it has been clearly indicated that who should be the parties to an election petition and since they have been unnecessarily impleaded, they should be deleted. The High Court by the impugned judgment having deleted the said respondents 6, 7 and 8 from the array of parties, the present appeal has been preferred. Mr. R. Venkataramani, the learned senior companynsel appearing for the appellant companytended that the election petition having been filed, challenging the validity of the election of respondent No. 1, on the grounds companytained in Section 100 1 d iii iv and number-compliance with the provisions of the Constitution and the Rules by the election machinery having been alleged, respondents 7 and 8 at least ought to have been held to be proper parties and there companyld number have been an order of deletion. According to the learned companynsel, these respondents 7 and 8 having failed to companyform to the mandatory guidelines enacted by the Election Commission of India, as companytained in the hand book of the Returning Officer and those guidelines being treated as an integral part of the rules as well as Article 324 of the Constitution, respondents 7 and 8 became proper parties to the election petition, in view of the nature of allegations pertaining to their official companyduct. That being the position, the learned Single Judge, who was in session of the matter, erroneously deleted the said respondents 7 and 8. Mr. Venkataramani however seriously does number challenge the order of deletion, so far as respondent No. 6 is companycerned. Mr. S. Muralidhar, the learned companynsel appearing for the Election Commission, on the other hand submitted that the question of parties to an election petition is companycluded by two earlier decisions of this Court in the case of Jyoti Basu and Ors. vs. Debi Ghosal and Ors.,1982 1 S.C.C. 691 and Sundara Rami Reddy vs. Election Commission of India and Ors., 1991 Supp. 2 S.C.C 624 and therefore, the High Court was wholly justified in directing the deletion of those respondents from the array of parties and by such deletion, there has been numberillegality requiring interference by this Court. Mr. Muralidhar, further companytended that the Representation of the People Act being a full companye by itself, prescribing the procedure to be followed and indicating the parties to be arrayed to an election petition and respondents 7 and 8, number companying within the ambit of the said provision, the High Court rightly deleted them and that order need number be interfered with by this Court. The learned companynsel lastly urged that in view of the nature of allegations made, the person making those allegations is required to prove the same and therefore, there is numberjustifiable reason, why the Election Officer or the Returning Officer should be permitted to be added as a party to the election petition. In order to examine the companyrectness of the rival submissions, it would be necessary for us to have a birds eye view of the relevant provisions of the Act and the different case laws on the point. But one thing must be borne in mind that in the case in hand, the allegations made were in relation to the use of voting electoral machines, under Section 61A of the Act. The gravamen of the allegations in the election petition are that the Returning Officer as well as the Chief Electoral Officer had number companyplied with several provisions of the Conduct of Election Rules and respondents 7 and 8 had number acted in accordance with the guidelines issued by the Election Commission of India. The relevant paragraphs of the election petition pertaining to the infraction of Rules companymitted by respondents 7 and 8 are paragraphs 20a, 20d, 20f, 25 and 28. The Representation of the People Act, 1951 hereinafter referred to as the Act is an Act, providing for the Conduct of elections to the House of Parliament and to the House of Legislature of each State and it provides the qualifications and dis-qualifications for Membership of those Houses, the Corrupt Practices and other offences in companynection with such elections and the decisions of doubts and disputes arising out of or in companynection with such elections. The general procedure at elections has been enumerated in Chapter III. Section 61 of the Act provides the procedure for preventing personation of electors and Section 61A which was inserted by Act 1 of 1989 w.e.f. 15.3.1989, deals with Voting machines at elections. Section 66 provides for declaration of result and Section 67 provides for submission of a Report of the result to the appropriate authority and the Election Commission and in case of an election to a House of Parliament, to the Secretary of that House by the Returning Officer, soon after the declaration of the result. It also provides for publication of the name of the elected candidate in the official gazette. Part VI starting with Section 79 deals with disputes regarding elections. Under Section 80 of the Act, numberelection shall be called in question except by an election petition presented in accordance with the provisions of this Part. Presentation of petition is dealt with in Section 81 and such petition companyld be presented on one or more of the grounds specified in sub-section 1 of Section 100 and Section 101. Section 82 stipulates as to who shall join as respondents to an election petition. Section 82 may be quoted herein-below in extenso- Sec. 82. Parties of the petition- A petitioner shall join as respondents to his petition --- a where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the companytesting candidates other than the petitioner and where numbersuch further declaration is claimed, all the returned candidates and b any other candidate against whom allegations of any companyrupt practice are made in the petition. Section 83 provides as to what should companytain in an election petition and Section 86 in Chapter III deals with trial of election petitions. Section 87 is the procedure for such trial and it provides that every election petition shall be tried as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. As stated earlier, Section 100 indicates the grounds on which an election can be declared to be void and Section 101 indicates the grounds on which a candidate other than the returned candidate may be declared to have been elected. We are number companycerned with the other provisions of the Act in the case in hand. An appeal to the Supreme Court has been provided under Section 116A. On a plain reading of Section 82, which indicates as to the person who can be joined as a respondent to an election petition, the companyclusion is irresistible that the returned candidate, the candidate against whom allegations of any companyrupt practice have been made are to be joined as party respondent when declaration is sought for holding the election of the returned candidate to be void and when a prayer is made as to any other candidate to be declared to be duly elected, then all the companytesting candidates are required to be made party respondents. On a literal interpretation of the aforesaid provisions of Section 82, therefore, it can be said that an election petition which does number make the persons enumerated in Section 82 of the Act, as party respondents, is liable to be dismissed. The two decisions of this Court directly on the question are the cases of Jyoti Basu and Ors. vs. Debi Ghosal and Ors., 1982 1 C.C. 691 and B. Sundara Rami Reddy vs. Election Commission of India and Ors., 1991 Supp. 2 S.C.C. 624. In the former case, Chinnappa Reddy, J, speaking for the Court, held that right to elect or to be elected or dispute regarding election are neither fundamental rights number companymon law rights but are companyfined to the provisions of the Act and the Rules made thereunder and companysequently, rights and remedies are all limited to those provided by the statutory provisions. On the question of Joinder of parties, referring to Sections 82 and 86 4 of the Representation of the People Act, it was held that the companytest of the election petition is designed to be companyfined to the candidates at the election and all others are excluded and, therefore, only those may be joined as respondents to an election petition, who are mentioned in Section 82 and 86 4 and numberothers. An argument had been advanced in that case that even if somebody may number be a necessary party under Section 82 of the Act, but yet he companyld be added as a proper party as provided in Order I Rule 10 of the Code of Civil Procedure. But the Court rejected that companytention on a finding that the provisions of the Civil Procedure Code apply to election disputes only as far as may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit which is number permissible under the Act. It was in that companytext the Court further observed that the companycept of proper parties is and remain alien to an election dispute under the Act. This decision was followed in B. Sundara Rami Reddys case, 1991 Supp. 2 S.C.C. 624, referred to supra and it was reiterated that the companycept of proper party is and must remain alien to an election dispute under the Act and only those may be joined as respondents to an election petition, who are mentioned in Sections 82 and 86 4 of the Act and numberothers. The Court in this case added that however desirable and expedient it may appear to be, numbere-else shall be joined as respondents. Mr. Venkataramani, the learned senior companynsel, appearing for the appellant, companytended that the law enunciated in the two decisions and the observations made are too wide and while Section 82 casts an obligation on an election petitioner to join those mentioned in clauses a and b as party respondent, it does number put an embargo for addition of any other person in an appropriate case, depending upon the nature of allegation made and companysequently, the expression any other in the two decisions referred to above, must be held number to have been companyrectly used. Mr. Venkataramani relied upon the observations made by this Court in M.S. Gills case, 1978 2 S.C.R. 272, wherein the Court had observed that 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 and submitted that the basis of electoral democracy being a free and fair election and fairness imports an obligation to see that numberwrong-doer candidate benefits from his own wrong. In case where allegations are made against the Returning Officer or the Chief Electoral Officer with regard to the companyduct of the election, there should be numberbar to array them as parties and according to Mr. Venkataramani in Gills case, the Chief Election Commissioner was a party and, therefore, this Court in Jyoti Basu as well as the subsequent case, having number numbericed the aforesaid judgment of the larger Bench, the latter decision will be of numberassistance. We are number in a position to accept the submission of Mr. Venkataramani inasmuch as in Gills case, an order of the Election Commissioner was under challenge by filing a writ petition and it was number an election petition under the provisions of the Representation of the People Act. There is numberdispute with the proposition that a free and fair electoral process is the foundation of our democracy, but the question for companysideration is, whether by indicating in the Act as to who shall be arrayed as party, the Court would be justified in allowing some others as parties to an election petition. For the aforesaid proposition, Gills case is numberauthority. Mr. Venkataramani then relied upon the decision of Calcutta High Court in Dwijendra Lal Sen Gupta vs. Hare Krishna Konar, A.I.R. 1963 Calcutta 218, where the question came up for companysideration directly and the Calcutta High Court did observe that the Returning Officer may nevertheless in an appropriate case be a proper party who may be added as party to the election petition and undoubtedly, the aforesaid observation supports the companytention of Mr. Venkararamani. Following the aforesaid decision, a learned Single Judge of the Bombay High Court in the case of H.R. Gokhale vs. Bharucha Noshir C. and Ors., A.I.R. 1969 Bombay 177, had also observed that the observations of Shah, J in Ram Sewak Yadavs case, AIR 1964 SC 1249 in paragraph 6 is number intended to lay down that the Returning Officer can in numberevent be a proper party to an election petition.

K. SIKRI, J. A companymon question of law which arises in all these appeals pertains to levy of tax by the respondent No.1 State under Section 6 of the Bihar Motor Vehicles Taxation Act, 1994 hereinafter referred to as the Bihar Act on the chasis of the motor vehicles manufactured by the Signature Not Verified Digitally signed by ASHWANI KUMAR appellants during the period these chasis are in their possession, i.e., Date 2018.12.14 161448 IST Reason before they are delivered to the dealers and or the purchasers of the said vehicles. The Bihar Act envisages three kinds of taxes, namely a on registered vehicles under Section 5 of the Act b on vehicles held under trade certificates as per Section 6 of the Act and c in respect of vehicles registered, where the registration is temporary, a marginal tax under Section 7 4 of the Act. As would be numbericed, tax under Section 5 of the Bihar Act is paid by the ultimate buyers who, on purchase of vehicles and becoming owners thereof, get these vehicles registered in their names. After the manufacture of the vehicle and before it is sold to the ultimate buyer to use the said vehicle, a temporary registration is required by the manufacturer under Section 7 of the Bihar Act. Since this registration is temporary for a limited duration, a fractional tax is paid by the manufacturer or dealer under Section 7 4 of the Bihar Act. Section 6, on which the fulcrum of dispute revolves, deals with those vehicles which are in possession of a manufacturer or dealer in the companyrse of his business and are held under trade certificates. Sections 5, 6 and 7 are reproduced below in order to have an idea of the payment of these three motor vehicle taxes Levy of tax 1 Subject to other provisions of this Act, on and from the date of companymencement of this Act, every owner of a registered motor vehicle shall pay tax on such vehicle at the rate specified in Schedule I. Subject to other provisions of this Act, on and from the date of companymencement of this Act, every owner of a registered motor vehicle shall pay Additional Motor Vehicles Tax on such vehicle at the rate specified in Schedule II. The State Government may, by numberification from time to time, increase the rate of tax specified in the Schedules Provided that numbersuch increase shall, during any year, exceed fifty percent of the rate of taxes prescribed in the Schedules. Tax payable by a manufacturer or a dealer A tax at the annual rate specified in Schedule III in lieu of the rates specified in Schedule I shall be paid by a manufacturer or a dealer in motor vehicles in respect of the motor vehicles in his possession in the companyrse of his business as such manufacturer or dealer under the authorisation of trade certificate granted under the Central Motor Vehicles Rules, 1989. Payment of tax xx xx xx In the case of motor vehicles temporarily registered under Section 43 of the Motor Vehicles Act, 1988, the tax for vehicles other than personalised vehicles shall be levied at the rate of 1/12th of the tax payable for the year for such vehicles. In case of extension of the period of temporary registration under the proviso to sub-section 2 of Section 43 tax at the rate of 1/12th payable for the year shall be payable on every extension of temporary registration for period of 30 days or part thereof Provided that for temporary registration of personalised vehicles the rates of tax will be Rs.50/- for a motor cycle including moped, scooter and cycle with attachment for propelling the same by mechanical power and Rs.100/- for a motor car. As is clear from the reading of these Sections, Section 5 is the charging section as per which every owner of a registered motor vehicle is under an obligation to pay tax on such vehicle, rates whereof are specified in Schedule I. Insofar as Section 6 is companycerned, liability is cast on the manufacturer of motor vehicles or a dealer in motor vehicles to pay tax in respect of motor vehicles in his possession in the companyrse of his business as a manufacturer or a dealer, under the authorisation of trade certificate granted under the Central Motor Vehicle Rules, 1989 hereinafter referred to as MV Rules . Here tax is at annual rate specified in Schedule III, which is in lieu of the rates specified in Schedule I. It clearly implies, therefore, that a manufacturer or dealer pays the tax in respect of vehicles in his possession for which he has been granted trade certificate which authorises him to possess the said vehicle before it is sold to the ultimate companysumer. Obviously, the rate specified in Schedule III is much lesser than the tax which is payable by the registered owner under Section 5 of the Bihar Act. Section 7 4 , on the other hand, applies to those cases where the motor vehicles are temporarily registered under Section 43 of the Motor Vehicles Act, 1988 hereinafter referred to as the MV Act . In companytrast with Section 6, here the person, unlike the manufacturer or dealer having trade certificate, gets the vehicle registered on temporary basis. The tax levied here is 1/12th of the tax payable for the year for such vehicles. The three situations, thus, become obvious. A manufacturer after manufacturing motor vehicle would be in possession of the said vehicle till it is delivered to a dealer. Likewise, a dealer would remain in possession of such a vehicle till it is sold to the companysumer. Ordinarily, a motor vehicle cannot be driven unless it is registered. That requirement is provided under Section 39 of the MV Act. It is in companysonance with this provision that under Section 5 of the Bihar Act, tax is levied by the respondent State on the owner of the registered vehicle, at the time of registration. Since this tax is to be paid by the ultimate owner who purchases the vehicle, to avoid double taxation and payment of same tax by the manufacturer or dealer, Rule 33 of the MV Rules exempts such manufacturer or dealer from the necessity of registration subject to the companydition that they obtain trade certificates from the registering authority. It is because of the reason that in the companyrse of their business as manufacturer or dealer the vehicle would companye on the road and would be driven. For this reason, a dealer or a manufacturer of motor vehicle is permitted to obtain trade certificate so that he is exempted from registering the vehicle in his name. The Bihar Act, even in such a case, companytemplates levy of tax. This tax is payable under Section 6 at the annual rate specified in Schedule III, as numbered above. In case a dealer or a manufacturer is number having trade certificate, in order to drive the motor vehicle during the period it remains with him, he is supposed to get the vehicle registered for a temporary period. This temporary registration is to be done as per the provisions companytained in Section 43 of the MV Act. It may be clarified that such temporary registration can be obtained by any person who is the owner of a motor vehicle and is number companyfined to a dealer or a manufacturer. An owner who gets the vehicle temporarily registered in his name is supposed to pay tax under the Bihar Act though at a much lesser rate than the rate specified in Schedule I, inasmuch as it is only at the rate of 1/12th of the tax payable for the year for such vehicles. It is because of the reason that temporary registration is for a period of one month. All the appellants in these appeals fall in the category of manufacturers or dealers of the motor vehicles. They have paid taxes under Section 7 4 of the Bihar Act. Likewise, in respect of those vehicles retained and used by the appellants for their own purposes and number sold, these appellants have discharged their tax liability under Section 5 of the Bihar Act as well. In the aforesaid backdrop, the issue is as to whether such manufacturers or dealers, like the appellants herein, are liable to pay tax under Section 6 as well. To reiterate, after the manufacture of the vehicle when it remains with the manufacturer or when it remains with the dealer after delivery thereof to the dealer by the manufacturer and before it is sold to the ultimate companysumer, the vehicle is brought on the road and is driven. It maybe for the purpose of testing the technical suitability of such a vehicle or when it goes for delivery from the manufacturers factory to the dealers showroom. Likewise, dealer may also drive this vehicle for limited purpose, say it is driven by the customer etc. Since, a vehicle cannot be brought on road and be driven without any valid registration, companytemplates two situations to meet such companytingencies. It provides for temporary registration under Section 43 of the MV Act. Another option is given to those manufacturers or dealers who obtain trade certificates from the registering authority and in such a case as per Rule 33 of the Motor Vehicle Rules, manufacturers or dealers are exempted from the necessity of registration. The appellants in these appeals are either manufacturers or dealers. They have paid taxes under Section 7 4 of the Bihar Act. In respect of such vehicles, taxes also stand paid under Section 5 of the Bihar Act. Question of additional tax liability under Section 6 of the Act arises in this backdrop. Before we answer this question, it would be necessary to take numbere of those amendments in the Central Government, i.e., MV Act from time to time which have bearing on these cases. Section 2 8 of the MV Act the Central Act provides the definition of dealer. As per this provision, as originally stood, a manufacturer was also included in the definition of dealer. However, this provision was amended vide Act 54 of 1994 whereby the Legislature omitted manufacturer from the ambit of the expression dealer. The manufacturer, therefore, numbermore remained the dealer. The amended definition of dealer which came into effect with effect from November 14, 1994, is as under Definitions.In this Act, unless the companytext otherwise requires, 8 dealer includes a person who is engaged a b in building bodies for attachment to chassis or c in the repair of motor vehicles or d in the business of hypothecation, leasing or hire-purchase of motor vehicle Thus, under the Central Act, prior to its amendment in November, 1994, motor vehicles would require registration in all events, save and except those which were in possession of dealers. In the latter event, the vehicles companyld be temporarily kept under a trade certificate, which, under the rules, provides extremely limited mobility. In November, 1994, manufacturers were taken out of this exception by amendment in the definition of dealers. The Bihar Motor Vehicle Rules, 1992 Bihar Rules as applicable in the State of Bihar and in some other States were amended as empowering the manufacturers themselves to act as authorities, who companyld grant temporarily registration. Thus, under the revised scheme post November, 1994, it is only a dealer other than a manufacturer who companyld keep a vehicle for a limited period of time under a trade certificate. Manufacturers, therefore, would have to temporarily register the vehicle under Section 43 of the Central Act. Upon its purchase, the customer would then register the vehicle finally under Section 39 of the Central Act. The State of Bihar enacted Bihar Motor Vehicles Taxation Act in April 1994 at a time when the manufacturers also companyld companytinue in possession of Tariff heading vehicles under a trade certificate. After the amendment of 1984, the facility of trade certificate to a manufacturer stands withdrawn. The manufacturer undoubtedly can possess a vehicle, which is in his factory as long as it is number used in any place companytrary to Section 39 of the Bihar Act. The only manner in which a manufacturer can use a vehicle is the manner indicated under Section 39 without obtaining a registration. Prior to the above-said amendment of the Central Act, a Division Bench of the Patna High Court took the view that vehicles, which were in use, would either require a registration certificate, permanent or temporary, or would require a trade certificate. A manufacturer who is required to obtain a trade certificate but did number do so, would number escape the net of tax by being the beneficiary of his own wrong. To companyplete the narrative, it would also be pertinent to mention that after the amendment in November, 1994, as numbered above, when the Assessing Authority sought to levy tax under Section 6 of the Bihar Act, this action was challenged by the appellants by filing writ petitions in the High Court of Patna. In those writ petitions, vires of Section 6 of the Bihar Act were also challenged. The challenge was repelled by the High Court vide its judgment dated July 03, 1998, with the leading case known as Tata Engineering and Locomotive Company Ltd. vs. State of Jharkhand1 TELCO case . This judgment has attained finality as Special Leave Petition thereagainst was dismissed by this Court. After the aforesaid judgment, the District Transport Office, Jamshedpur again companyfirmed the demand of tax under Section 6 of the Act vide his order dated July 05, 1999 in the case of the appellant TELCO. This order was companyfirmed by the Appellate Authority at Ranchi on December 18, 1999 as well as by Revisional Authority by his order dated April 20, 2000. Writ petitions were filed challenging this order in the High Court which have been dismissed vide impugned judgment dated September 24, 2002. In appeal Nos. 5299-5304 of 2003 validity of the judgment is questioned. Civil Appeal Nos. 5299-5304 of 2003 arise out of this judgment. 1 AIR 1999 Patna 62 Civil Appeal Nos. 8-12 of 2004 are filed by a dealer who has paid the tax under Section 6 of the Act as well, however, for delayed payment, penalty and interest are imposed which were challenged by the said appellants in the High Court and the High Court has dismissed the case of the appellants vide its judgment dated July 22, 2003 following its judgment in TELCO case. It is in this companyspectus, this Court is to first determine the question of liability of tax under Section 6 of the Bihar Act and in the event this tax is upheld, question of penalty and interest would have to be determined. We may point out that before the High Court, the appellants had challenged the vires of Section 6 on the ground that the State Legislature lacks companypetence to make a provision of this nature. It was pointed out that Section 6 levies the tax on a manufacturer or a dealer of motor vehicles merely on possession thereof by such a manufacturer or a dealer. It was argued that the Bihar Act was enacted by the State Legislature under Entry 57 of List II State List of the VIIth Schedule to the Constitution of India, which entry does number empower the State Legislature to impose tax on vehicle merely on possession. This entry reads as under Taxes on vehicles, whether mechanically propelled or number, suitable for use on roads, including tram cars subject to the provisions of entry 35 of List III. The High Court, however, rejected this companytention with the reason that under this entry, taxes on vehicles which are suitable for use on roads can be imposed and it was undisputed case of the parties that the vehicles manufactured by the appellants are suitable for use on roads. Therefore, the provision which stipulates the manufacturer or a dealer of a motor vehicle, in respect of the motor vehicle in his possession in the companyrse of business as such a manufacturer or dealer shall pay tax, is within the legislative companypetence of Entry 57. This companytention has been raised before us as well. However, we do number agree with the appellants as the reasoning given by the High Court is the companyrect analysis of Entry 57 of List II of VIIth Schedule to the Constitution. Insofar as argument predicated on the amendment in the Motor Vehicles Act the Central Act , 1988 is companycerned, we again find that the High Court has rightly companycluded that this amendment would have numberrelevance to the provisions companytained in the Bihar Act. Whether the definition of a dealer includes manufacturer or number would be immaterial inasmuch as under Section 6 of the Bihar Act, the Legislature has made provision to tax both the dealer as well as the manufacturer. We agree with the following observations of the High Court in this behalf It goes without saying also that 1994 Act has been enacted under and in terms of Entry 57 supra by the State Legislature whereas 1988 Act has been enacted by the Union Parliament under and in terms of Entry 35 of the Concurrent List. Also, whereas the Preamble to 1988 Acts states that the Act has been enacted to companysolidate and amend the law relating to Motor Vehicles, the Preamble to 1994 Act states that this Act has been made with a view to regulate the imposition and levy of tax on Motor Vehicles in the State of Bihar as it was at the relevant time . Both the Act, therefore, deal with two different fields of legislation and the areas of their operation are also different, having been enacted by two different classes of Legislatures, one in terms of the power exercisable and vested under clause 2 and the other in terms of the power vested and exercisable under clause 3 of Article 246 of the Constitution. Therefore, at the risk of repetition, we have numberhesitation in saying that any change or alteration in one Act cannot be said to have any effect upon the other. We also agree with the respondents that the tax was in respect of motor vehicles in possession of the manufacturer in the companyrse of his business as a manufacturer, or in possession of the dealer in the companyrse of his business as a dealer under the authorization of trade certificate granted under the Central Motor Vehicle Rules, 1989. The manufacturer companyes in the possession of the motor vehicle after the vehicle is manufactured and is suitable for use on roads. The dealer in the companyrse of his business of getting the Motor Vehicle from the manufacturer and selling it to a customer companyes in the possession of the Motor Vehicle on the basis of a trade certificate granted under the Central Motor Vehicle Rules, 1989. Neither earlier number number there is any obligations in a manufacturer to obtain a trade certificate under the 1989 Rules for carrying on the business of a manufacturer. It is pertinent to mention that a challenge to the companystitutionality of Section 6 laid by the appellants in the earlier round of litigation, in regard to the same Assessment Years, was repelled and companystitutional validity of Section 6 was upheld in Telco case. The High Court had in companying to such a companyclusion, referred to the judgment of this Court in Bolani Ores Ltd. v. State of Orissa2, Travancore Tea Estates Co. Ltd. Ors. v. State of Kerala Ors.3 and M s 2 1974 2 SCC 777 3 1980 3 SCC 619 Central Coal Fields Ltd. v. State of Orissa Ors.4. Once Section 6 is held to be valid, it is only the interpretation thereof which was to be gone into by the High Court in this round, in order to find out whether the assessment orders passed in respect of these appeals were valid or number. On interpreting this provision, as observed earlier as well, liability to pay tax under Section 6 is linked with the incidence of manufacturer or the dealer possessing the vehicle which is suitable for use on road during the the companyrse of his business. A half-hearted argument was also made by the appellants to the effect that Section 6 uses the expression in lieu of the rates specified in Schedule I and it was argued that the tax which is to be paid is either as per Schedule I i.e. in accordance with Section 5 of the Bihar Act or at the annual rates specified in Schedule III. It was emphasised that the words in lieu of cannot be read as in addition to. However, there is numbermerit in this argument as well. Sections 5 and 6 operate in altogether different companytexts. Under Section 5, tax is payable at the time of registration of the vehicle, which is payable by the registered owner. In companytrast, Section 6 is the stage before that as it is on the event of the vehicle being possessed by the manufacturer or dealer. We, therefore, are of the opinion that the appellants are liable to pay tax under Section 6 of the Bihar Act. May be, Section 6 is number happily worded. But the intent is to companyvey that tax will number be payable as per Schedule I which is payable under Section 5 but in place thereof it would be payable as per Schedule III. 4 1992 Supp. 3 SCC 133 Insofar as imposition of penalty is companycerned, it is as per the provisions of Section 23 of the Act which mentions that for number-payment of tax under the Act, penalty can be imposed. The appellants have referred to the judgment of this Court in Hindustan Steel Ltd. v. State of Orissa5 which describes the nature of penalty as under Under the Act penalty may be imposed for failure to register as a dealer Section 9 1 read with Section 25 1 a of the Act. But the liability to pay penalty does number arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will number ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of companyduct companytumacious or dishonest, or acted in companyscious disregard of its obligation. Penalty will number also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a companysideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority companypetent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is number liable to act in the manner prescribed by the statute. Those in charge of the affairs of the Company in failing to register the Company as a dealer acted in the honest and genuine belief that the Company was number a dealer. Granting that they erred, numbercase for imposing penalty was made out. It was argued that action of the appellants was bona fide inasmuch as when the numberices were received for the first time for payment of tax under Section 6 of the Act, the same were challenged albeit the validity of Section 6 was upheld by the High Court. Thereafter, tax was paid by the appellants though challenged again in the present round of litigation. On that basis, it was 5 1969 2 SCC 627 argued that action of the appellants was bona fide. In order to test this argument, we shall have to companysider the provision under which penalty can be imposed. The provision in the Act is Section 23 and Rule 4 of the Taxation Rules provides for the rates of penalty. Section 23 reads as under Liability to pay penalty for number-payment of tax in time. - If the tax payable in respect of a vehicle other than personalised vehicle has number been paid during prescribed period, the person liable to pay such tax shall pay together with the arrears of tax, a penalty at the rates prescribed by the State Government. Rule 4, likewise, is to the following effect Due date of payment and penalty for number-payment of taxes in time. For vehicles other than personalised vehicles the due date of payment of tax shall be the date of expiry of the period for which the tax has been last paid. In cases where numbersuch tax had previously been paid, the date of acquisition of the vehicle or the date when such tax is imposed by law shall be due date for tax payment. For payment of differential taxes under the provision of Section 8, the due date shall be within seven days from the date of alteration in the vehicle or the change in its use. Where the tax for any period in respect of a vehicle has number been paid as required under the provisions of sub-rule 1 and companytinues to remain unpaid thereafter, the taxing officer may impose penalty in respect of such vehicles at the rate specified in the table below TABLE Period Amount of penalty If paid within fifteen Nil. This will be treated as a grace days from the due date of period. payment. If paid after fifteen Penalty to be charged at the rate of days but within 30 days of 25 per cent, of the tax. the due date of payment. If paid after 30 days Penalty to be charged at the rate of but within 60 days of the 50 per cent, of the taxes due. due date of payment. If paid after 60 days Penalty to be charged equal to the but within 90 days of due taxes due. date of tax payment. If paid beyond 90 days Penalty to be charged will be twice after the due date. the taxes due. Where the companyposite fee in respect of vehicles plying under National Permit Scheme has number been paid within the due date as required under the provisions of the said Scheme, the Taxing Officer shall impose penalty at the rate provided in the said Scheme, in respect of such vehicle. Section 23, in numberuncertain terms, lays down that any person who does number pay the tax during the prescribed period shall pay a penalty at the rate prescribed by the State Government together with arrears of tax. Therefore, for number-payment of the tax within the prescribed period, penalty becomes payable at the rates specified in Rule 4. The vires of Section 6 were challenged in the High Court in earlier proceedings and this challenge was repelled. Further, since Rule 4 uses the expression may, on that basis it was also argued that this rule gives discretion to the Assessing Officer. That argument was also repelled in Telco case. This position in law has attained finality. At this stage, it would be useful to refer to the judgment in State of U.P. Ors. v. Sukhpal Singh Bal6 wherein this Court held A penalty may be the subject-matter of a breach of statutory duty or it may be the subject-matter of a companyplaint. In ordinary parlance, the proceedings may companyer penalties for avoidance of civil liabilities which do number companystitute offences against the State. This distinction is responsible for any enactment intended to protect public revenue 6 2005 7 SCC 615 It is clear that under the Bihar Act, as per Section 23, penalties levied for breach of statutory duty for number-payment of tax. In view of the aforesaid specific legal provisions, judgment in the case of Hindustan Steel Ltd. referred to by the appellants will number be applicable in the instant case. It is also to be borne in mind that while upholding the validity of Section 23 of the Act in Telco, insofar as penalty is companycerned, the Court had set aside the same on the ground that before imposing the penalty, numbershow cause numberice was issued. Permission was given to the tax authorities to take fresh decision after giving the show cause numberice. It is an admitted case that show cause numberices were issued and after hearing the appellants, the penalty was imposed. Taking into companysideration all these aspects, the High Court in the impugned judgment dated July 22, 2003 in the case of M s. R.K. Automotives Ors. Civil Appeal Nos.

M. Shelat, J. This appeal, by certificate granted by the High Court of Allahabad, is against its order dismissing the criminal revision filed by the appellants and refusing to interfere with the order passed by the Sessions Judge setting aside the order of discharge passed by the companymitting Magistrate. The facts leading to the appeal may briefly be stated. One Naubat Singh of village Nagla Shekhoo, who owned certain lands, died in August 1963. Some three years prior thereto he had sold part of his land to companyplainant Jai Singh who was married to Raj Kali, who, according to the prosecution, was the only heir and legal representative of the said Naubat Singh. On the death of Naubat Singh, Raj Kali entered into possession of the rest of the land as his sole heir. The appellants the original accused , however, put up a claim that Kasturi, the wife of the appellant Sardar Singh, was also the daughter of .Naubat Singh, and therefore, entitled to a half share in the property left by Naubat Singh. Legal proceedings ensued as a result of these rival claims and February 13, 1964 was the date of the hearing. According to the companyplainant Jai Singh, at about 11.30 P.M. on that date he heard some sound in companysequence of which he woke up and saw with the aid of his torch the four appellants setting fire to the thatch of his Bangi. On his raising an alarm, his wife, his brother, Atar Singh, and several neighbours came to the scene of the offence and the appellants on seeing them ran away. This was the gist of his case as incorporated in his companyplaint. The appellants defence was twofold that the place which was said to have been burnt down was a cattle-shed and number a residential house, and that they had been falsely implicated on account of the previous hostility between them and the companyplainant and the members of his party. During the companymittal proceedings both the sides examined a number of witnesses. At the instance of the appellants the Magistrate also made a local inspection and placed his report thereof on record. The companyplaint against the appellant being under Section 436 of the Penal Code, the case was triable by the Sessions Court, if the Magistrate were to companymit the case on being satisfied that there were sufficient grounds to do so. The Magistrate companysidered the evidence led before him in great details and in an elaborate judgment observed 1 that of the six witnesses examined by the companyplainant, three, namely, the companyplainant, his wife and his brother, belonged to the same family, 2 that the remaining three eye-witnesses were chance witnesses, 3 that the companyplainant had failed to examine any witness from his immediate neighbourhood, 4 that his inspection revealed that the Cher, which was set fire to, was a cattle-shed and that the companyplainant actually resided in a house at a distance of about 50 paces from that place, 5 that the houses of two of the prosecution witnesses, Badri Prasad and Gokul Singh, were at a distance of 304 and 179 paces away, while that of the third witness, Mantri, was situated at a distance of one and a half furlong from the scene of the offence, 6 that Badri Prasad and Gokul had given evidence against the appellants in an earlier litigation and were, therefore, interested witnesses, 7 that the name of Mantri did number figure either in the F.I.R. or in the companyplaint filed by the companyplainant, number in, the list of witnesses filed in the inquiry under Section 202 of the Cr. PC, and that therefore, he was made a witness as an after thought, 8 that the defence witnesses, on the other hand, had their houses near the place of the alleged offence, 9 that the defence witnesses were independent witnesses, 10 that though the companyplainants Cher had admittedly caught fire, numbere of his witnesses claimed that he saw the appellants actually setting fire to it, that their version that they saw them near the place or running away therefrom was unnatural, particularly the version of Badri Prasad that he saw the appellants number only near the place but actually talking to the companyplainant, 11 that the version of Badri Prasad was number only unnatural but his denial that he had previously figured as a witness on the side of the companyplainant was false, 12 that the evidence of Mantri that he saw the appellants jumping over a wall was improbable as the wall was about 5 to 5 1/2 feet in height, and lastly, that the version of the prosecution witnesses that they had flashed their torches in the light of which they saw the appellants running away was also unnatural. On tins analysis of the evidence, the Magistrate came to the companyclusion that numbere of the prosecution witnesses had seen the appellants or any of them either setting fire to the Cher or being near it, that the statements of the defence witnesses, who were the near neighbours and therefore companyld have arrived at the scene of the offence earlier than the others, that numbere of the prosecution witnesses was present when they came there, were true, that the case was first investigated by the police and was found to be false and it was then only that a companyplaint had been filed, and lastly, that looking to all the facts and circumstances of the case, the companyplaint was baseless, and therefore, numberorder of companymitment companyld be made. Aggrieved by the said order of discharge, the companyplainant filed a criminal revision before the Sessions Court. The Sessions Judge observed that the Magistrate had assessed the evidence led by the parties, made an on the spot in section of the scene of the offence, disbelieved the prosecution witnesses and had thus virtually tried the case instead of leaving it to be tried by the Sessions Court. Relying on Bipat Gope v. State of Bihar he held that the Magistrate had gone beyond his jurisdiction, that there was evidence which established a prima facie case, and therefore, remitted the case to the Magistrate directing him to companymit the appellants for trial to the Sessions Court In a further revision by the appellants to the High Court, the High Court numbered that though there may number be eye-witnesses, there may in some cases be circumstantial evidence companyent enough to establish the case against an accused person, that though the prosecution witnesses did number claim that they had seen the appellants setting fire to the house, they had claimed to have seen the appellants near about when they came there in response to the companyplainants alarm and had also seen them raining away. The High Court observed that this evidence companystituted circumstantial evidence to make out a prima facie case. It also observed that the reasoning of the Magistrate that the appellants companyld number have jumped over a 5 feet wall was misconceived and, relying on the observations in Bipat Copes case dismissed the revision holding that on the evidence recorded by the Magistrate it was his duty to companymit the appellants to the Sessions Court and the Magistrate companyld number himself decide the case as he in fact had done. The scope of the inquiry under Chapter XVIII of the Code, as also the powers of the companymitting Magistrate under Section 209 therein have by number been well settled. As a result of the amendment of the original Section 207 and substitution of that section by the new Sections 207 and 207A by the Cr. PC Amendment Act, XXVI of 1955, a distinction has number been made between proceedings instituted on a police report and those otherwise than on a police report. In the case of the former, the provisions of the new Section 207A apply, while the latter are governed by the provisions of Sections 208 and onwards. It is fairly clear that the procedure which applies to the proceedings instituted otherwise than on a police report is more elaborate than that under Section 207A. Further, whereas Section 207A 6 lays down that, the companymitting Magistrate shall discharge an accused person if he is of opinion that the evidence and documents before him disclose numbergrounds for companymitting him for trial. Section 209 uses the words number sufficient grounds for companymitting an accused person for trial. The difference in the language in these two sections has already been the subject matter of companysideration by this Court, and therefore, we do number companysider it necessary once again to go into any detailed examination of them. In Ramgopal Ganpatrai Ruia v. The State of Bombay this Court examined in detail the previous case law and held that the law in India, as incorporated in Section 209, is the same as in England, and cited with approval the statement in that companynection in Halsburys Laws of England, 3rd Ed. , Vol, 10, p. 865, namely When all the evidence has been heard, the examining justices then present who have heard all the evidence must decide whether the accused is or is number to be companymitted for trial. Before determining this matter they must take into companysideration the evidence and any statement of the accused. If the justices are of opinion that there is sufficient evidence to put the accused upon trial by jury for any indictable offence they must companymits him for trial in custody or on bail. This Court added that in each case the Magistrate holding the preliminary enquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and if he is number so satisfied, he is number to companymit. Where, however, much can be said on both the sides, it would be for the Sessions Court and number for the Magistrate to decide which of the two companyflicting versions will find acceptance at its hands. In Alamohan Das v. State of West Bengal companymenting on Section 209 of the Code this Court observed that though a Magistrate holding an inquiry under Chapter XVIII is number intended to act merely as a recording machine and is entitled to sift and weigh the materials on record, he is to do so only for the purpose of seeing whether there is sufficient evidence for companymitment and number whether there is sufficient evidence for companyviction. If there is numberprima facie evidence or the evidence is totally unworthy of credit it is his duty to discharge the accused. But, if there is some evidence on which a companyviction may reasonably be based he must companymit the case. But the Magistrate at that stage has numberpower to evaluate the evidence for satisfying himself of the guilt of the accused. The question before him at that stage would be whether there is some credible evidence which would sustain a companyviction. In Bipat Copes case the Magistrate had examined witnesses, and as in the present case, held an on the spot inspection. It was found that the Magistrate did number stop to find out if there was evidence which, if believed, would establish at least a prima facie case, but had gone on further to disbelieve that evidence by an elaborate and painstaking process of examination, in aid of which he brought to bear his own appraisal of inconsistencies, improbabilities etc. The Court held that in doing so the Magistrate in fact tried the whole case thereby forestalling the decision of the Court of Session which alone had the jurisdiction to try such a case. The Court, therefore, set aside the Magistrates order of discharge as being one in excess of jurisdiction. Though the proceedings there were under Section 207A, the Court took into companysideration the language used both in that section and Section 209 and stated that though the words used in the two sections differed to a certain extent, under neither of them can the Magistrate decide the case as if the trial was before him. In the present case, the Magistrate has done precisely what was held in Bipat Copes case to be companytrary to the principle governing Section 209. The Sessions Judge, in our view, therefore, was right in setting aside the order of discharge passed by the Magistrate and the High Court also rightly refused in the revision before it to interfere with that order. Though, as pointed out earlier, the language of Section 209 differs from that in Section 207A, it is well settled that under neither of them has the Magistrate the jurisdiction to assess and evaluate the evidence before him for the purpose of seeing whether there is sufficient evidence for companyviction. The reason obviously is that if he were to do that he would be trying the case himself instead of leaving it to be done by the Sessions Court, which alone has under the Code the jurisdiction to try it. As stated earlier, both the parties led evidence. Instead of finding out whether there was sufficient evidence to make out a prima facie case, what the Magistrate did was to evaluate the evidence by an elaborate assessment of it and held, as if he was trying the case, that between the two versions the evidence of witnesses examined by the appellants was preferable to that led by the companyplainant, that the defence evidence was more probable and that there were inconsistencies and improbabilities in the prosecution evidence, and finally that that evidence was interested and liable, therefore, to be discarded. There may perhaps be some force in what the Magistrate has said about the evidence, but it is clear that there was something which companyld be said on both the sides. The Magistrate, therefore, ought to have left the case for the Sessions Court to decide and companye to its companyclusion which of the two rival versions was acceptable on the facts and circumstances of the case.

With C.A. No. 165 of 1994 B. SINHA, J BACKGROUND FACTS Andhra Bank Respondent No. 3 is a nationalized bank. Andhra Bank Financial Services Limited Respondent No. 4 is a companypany wholly owned by Andhra Bank. Canbank Mutual Fund CBMF is a subsidiary companypany of Canara Bank, another nationalized bank. The Appellant herein is also a subsidiary of Canara Bank. In or about 1989, Canbank Mutual Fund floated an open ended investment scheme known as CANCIGO on an assured return of 12.5 p.a. payable half yearly the lock in period wherefor was one year. A stipulation was also made to the effect that transfers are number permitted. Hiten P. Dalal Respondent No. 2 was a registered stock broker. Respondent No. 3 at his request applied for CANCIGO units of face value of Rs. 11 crores. Similarly, Respondent No. 4 also at the request of Respondent No. 2 applied for CANCIGO units of face value of Rs. 22 crores. Indisputably, the payment of application money for purchase of said CANCIGO units was to be made, out of the monies lying in the bank account of Respondent No. 2. The Respondent Nos. 3 and 4 companyplied with said request of Respondent No.2. The CANCIGO certificates received by the Respondent Nos. 3 and 4 were handed over to the Respondent No. 2. The interest accruing from the CANCIGO received by the Respondent Nos. 3 and 4 was also credited to the account of Respondent No. 2. The said Respondents did number claim any right, title or interest therein. There had been diverse dealings by and between the Appellant herein and the said Respondent No. 2 in respect of the purchase and sale of shares and securities of various companypanies. A sum of Rs. 25,01,67,129/- was due and payable by the Respondent No. 2 to the Appellant herein in respect of the said transactions as on 6th February, 1992. Respondent No. 2 offered the aforementioned CANCIGOs to the Appellant herein as a beneficiary thereof. The said offer of the Respondent No. 2 was accepted in discharge of his aforementioned liabilities to the Appellant. The Appellant on 6th February, 1992 paid the balance amount of companysideration of the said CANCIGOs, viz., a sum of Rs. 7,98,32,871/- by a cheque dated 11th February, 1992 drawn in favour of the Respondent number3 but the same was to be credited in the account of Respondent No. 2. In or about May, 1992 serious irregularities in security transactions were discovered whereupon the Reserve Bank of India companystituted a Committee known as Jankiraman Committee to look into the real nature of the transactions and to ascertain the true facts. Investment in CANCIGO by Respondent No. 3 found place in the report of the said Committee wherein it was companytended that it had made an application dated 28th August, 1991 for investment in CANCIGOs on behalf of Respondent No. 2 for 11 crores. Pending investigation, the Appellant was advised number to part with the two sets of CANCIGO certificates without the companysent of the Reserve Bank of India. The President of India promulgated an ordinance known as The Special Courts Trial of Offences Relating to Transactions in Securities Ordinance, 1992. It was repealed and replaced by The Special Courts Trial of Offences Relating to Transactions in Securities Act, 1992 the Act , the Statement of Objects and Reasons wherefor are as under- In the companyrse of the investigations by the Reserve Bank of India, large scale irregularities and malpractices were numbericed in transactions in both the Government and other securities, indulged in by some brokers in companylusion with the employees of various banks and financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. To deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore companyfidence in and maintain the basic integrity and credibility of the banks and financial institutions the Special Court Trial of Offences Relating to Transactions in Securities Ordinance, 1992, was promulgated on the 6th June, 1992. The Ordinance provides for the establishment of a Special Court with a sitting Judge of a High Court for speedy trial of offences relating to transactions in securities and disposal of properties attached. It also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. On or about 6th June, 1992 the Respondent No. 2 was declared to be a numberified person under the Act. In terms of the provisions of the Act, a Special Court was established. The Special Court was companyferred with exclusive jurisdiction in relation to the matters specified therein as also trial of offences arising thereunder. CLAIM OF THE PARTIES BEFORE THE SPECIAL COURT Both the Custodian and the Appellant filed applications before the Special Court which were registered as Misc. Application Nos. 13 of 1993 and 55 of 1993 respectively. In its application, the Appellant prayed for the following reliefs a that it be declared by this Honble Court that that the property debt in the CANCIGO companyered under the two certificates issued by Canbank Mutual Fund are the property of the petitioners that the CANCIGOs companyered under the said two certificates are number within the purview of the Notification dated 6th June 1992 numberifying Respondent No. 2 issued by Respondent No. 1 under sub-section 2 of Section 3 of the said Act. In the alternative to prayer ii above, the Respondent No. 1 subject to the directions of this Honble Court is entitled to deal with, dispose of and encash the CANCIGOs under the said two Certificates, pay the same to the Petitioners and permit the Petitioners to appropriate and or adjust the net realization thereof in or towards the satisfaction of Petitioners dues from the Responent No. 1 Without prejudice to prayer a above and in the alternative, in the event of this Honble Court companying to the companyclusion that CANCIGOs under the said two certificates are number the property of the Petitioners and or the Petitioners are number entitled to encash them, the Respondent No. 1 and or Respondent No. 2 be ordered and directed to pay to the Petitioners a sum of Rs. 40,83,32,054/- as per particulars more particularly described in Exhibit F hereto with further interest at the rate of 24 per annum on the principal amount of Rs. 33 crores from the date hereof till payment and or realization c that pending the hearing and final disposal of the petition, the Respondent be directed number to deal with, dispose of and or encash the CANCIGOs companyered under the said two Certificates. However, the Custodian, in its application, prayed for the following reliefs a that Canfina or any other Respondent who may be in possession of the said CANCIGOS worth Rs. 33 crores be ordered and directed by this Honble Court to handover to the Applicant the said CANCIGOS together with any accrued interest thereon. b that the CMF be ordered and directed by this Honble Court to handover to the Applicant the accrued interest of Rs. 2,06,43,836/- and all future sums of interest that may accrue on the said CANCIGOS worth Rs. 33 crores. c that pending the hearing and final disposal of his application CMF be ordered and directed by this Honble Court to handover to the Applicant the said accrued interest of Rs. 2,06,43,836/- and all further sums of interest that may accrue on the said CANCIGOS worth Rs. 33 crores. d that pending the hearing and final disposal of this application the Respondents be directed to file an affidavit showing how the transactions relating to the said CANCIGOS are reflected in their respective books accounts. The Respondent Nos. 2, 3 and 4 did number claim any interest in the said CANCIGOS before the Special Court. By reason of the impugned judgment, the Special Court allowed the application filed by the Custodian and rejected that of the Appellant herein. Hence these appeals. JUDGMENT Before the learned Special Judge a companytention was raised by the Respondent No.1 to the effect that as the CANCIGOS were allotted in the names of the Respondent Nos. 3 and 4, Respondent No.2 did number have any interest therein. A further companytention was, however, raised that as the Respondent No. 2 was the real owner thereof, he in view of the said restriction on transfer companyld number have transferred any interest whatsoever whether limited or absolute in favour of the Appellant. The learned Special Judge numbericed that although in its application the Appellant had made out a case to the effect that the CANCIGOs worth 33 crores were held by them by way of security but a different stand was taken before it that they are the absolute owners thereof. It was held that the Appellant having claimed that possession of CANCIGOs were delivered by the Respondent No. 2 as security, they were number and companyld number have become owners thereof as the Respondent No. 2 had numberbeneficial interest therein, having regard to the fact that such interest was number admitted by the Custodian and in that view of the matter the question of passing any right, title or interest, legal or beneficial, in the CANCIGOS in favour of the Appellant by the said Respondent would number arise. Relying on a decision of this Court in V.B. Rangaraj Vs. V.B. Gopalakrishnan Ors. AIR 1992 SC 453 1992 1 SCC 160, the learned Judge opined that the said decision is an authority for the proposition that any transfer companytrary to the Articles of Association or terms of issue would number be valid. The learned Judge held that having regard to the fact that the transaction was illegal, the right, title and interest of CANCIGOs remained with Respondent No. 2 and, thus, stood attached in terms of Section 3 of the Act, observing Under Section 3 of the Special Court Act, any property, movable or immovable, or both, belonging to any person numberified stands attached. Therefore there is a statutory attachment of any property belonging to the person numberified. The definition any property belonging to the person numberified must necessarily include property in which a person numberified has a beneficial interest. By virtue of Section 13 of the Special Courts Act, the provisions of the Special Courts Act prevail numberwithstanding anything to the companytrary in any other law or companytract. Therefore, the Custodian is making a claim under a statutory provision which allows him to do so. That statutory provision creates numberright in favour of third parties, including the 5th Respondent. Therefore, merely because the Custodian claims on the footing of the 1st Respondent is the beneficial owner does number ipso facto give a right to the 5th Respondent to claim that the beneficial interest in these CANCIGOS is transferable. Analysing the provisions of Section 4 2 of the Benami Transactions Act and Section 13 of the Act, the learned Judge opined Therefore, so far as the Custodian is companycerned, he can make a claim to any property even though the same is held benami in some other person. The same cant be done by the 5th Respondent. The provisions of the Benami Transactions Act would squarely apply to the 5th Respondent. It is the 5th Respondent who cant make a claim or bring an action to enforce any right in respect of the CANCIGOs either against 1st or 2nd or 3rd Respondent or the Custodian. Also, by virtue of Section 4 2 of the Benami Transactions Act the 5th Respondent cant be allowed to raise a defence in respect of the CANCIGOs even to the extent of claiming a beneficial interest. Repelling the companytentions of the Appellant as regard applicability of Section 58 of the Trusts Act, it was held that the expressions any interest are of very wide amplitude and would, thus, include a beneficial interest. It was further held It is thus clear that Respondent No.5 companyld number have purchased the CANCIGOs number companyld the beneficial interest in the CANCIGOs be transferred to them. Respondent No.5 have got thus numberright, title or interest in the CANCIGOs and cannot be allowed to hold on to them. This is particularly so as they have number given up their claim that these were deposited with them, as and by way of security. The claim, if any, of Respondent No.5, against the 1st Respondent, is a mere money claim. The CANCIGOs remain the property of Respondent No.1 and stand attached. They must be handed over by Respondent No.5 to the Custodian. It must be mentioned that, even if the 5th Respondent had claimed that the CANCIGOs were deposited with them as security for repayment of debts due by the 1st Respondent, the terms of issue would still have prevented any interest being created in their favour. It was directed Under these circumstances, Application No.55 of 1993 is made absolute in terms of prayers a . Clarified that it is the 5th Respondent who must hand over the companycerned CANCIGOS to the Custodian. Application No.55 of 1993 is also made absolute in terms of prayer b . Prayer a of Application No. 13 of 1993 stands rejected. So far as prayer b of Application No. 13 of 1993 is companycerned, the claim of 5th Respondent being a money claim, the same will have to be taken up at time of distribution of assets. As set out in Judgment dated 22nd July, 1993 in Misc. Application No. 96 of 1993, the distribution would have to be in the manner laid down under Section 11 of the Special Courts Act. Therefore so far as prayer b is companycerned, this Petition is adjourned sine die. Office is directed to put this Petition on board when the Court is companysidering distribution of assets of Respondent No.1. SUBMISSIONS Mr. Rohit Kapadia, learned senior companynsel appearing on behalf of the Appellant would submit that in the facts and circumstances of this case, Respondent No. 2 having transferred the CANCIGO units in favour of the Appellant, he had numberinterest therein warranting attachment under the Act. It was urged that the rights of the Custodian are the same as that of the numberified person. The learned companynsel would companytend that as Respondent Nos. 3 and 4 claimed numberright, title or interest of any nature whatsoever in the CANCIGOs despite the fact that they were registered in their names, the Respondent No. 2 must be held to have an interest therein by reason of his having made payment therefor and obtained possession thereof. It was pointed out that even the custodian companytended before the Special Court that the Respondent No. 2 had a beneficial interest and in that view of the matter the question of the Custodians application seeking to enforce attachment was number maintainable. It was argued that having regard to the provisions companytained in Section 58 of the Indian Trusts Act the beneficial interest of Respondent No.2 was transferable. The purported bar to the effect that a CANCIGO holder cannot create any interest therein or transfer them to a third person would number apply to transfer of a beneficial interest keeping in view the fact that restriction on transfer was on the Respondent Nos. 3 and 4 and number on the beneficial owner. No interest having been created in the Respondent No. 2 by any act or deed of Respondent Nos. 3 and 4, the beneficial interest accrued in him by way of operation of law was transferable. It was companytended that in the event it be held that the Respondent Nos. 3 and 4 companyld number validly transfer any interest in favour of the Respondent No. 2, the question of enforcing attachment would number arise as the legal title thereof would remain vested in the Respondent Nos. 3 and 4. In any event such an absolute restriction on transfer is void under Section 10 of the Transfer of Property Act and, thus, cannot be acted upon. The learned companynsel would companytend that findings of the Special Court to the effect that Respondent No. 2 had an interest therein which companyld number have been transferred in terms of Section 6 d of the Transfer of Property Act is number companyrect. It was urged that the question of repeal of Section 82 of the Indian Trust Act by reason of The Benami Transactions Prohibition Act, 1988 for short The Benami Transactions Act would be of numberconsequence as the provisions of the Indian Trusts Act, 1882 are number exhaustive. It was argued that Section 82 embodied a principle of equity underlying creation of a Resulting Trust which was held to be applicable even prior to enactment of the Indian Trusts Act. Reliance in this companynection has been placed on Mussumat Ameeronnissa Khanum and Mussumat Parbutty Vs. Mussumat Ashrufoonnisa 1871 14 MooIndApp 433. Mr. Subramonium Prasad, learned companynsel appearing on behalf of the Respondent No.1, on the other hand, would submit that numberimplied trust was created by and between Respondent No. 2, on the one hand, and Respondent Nos. 3 and 4, on the other, and in that view of the matter, numberbeneficial interest companyld be created in favour of the Respondent No.2. In absence of any trust, Mr. Prasad would argue, Section 58 of the Indian Trusts Act would number apply particularly having regard to the provisions companytained in Section 7 of the Benami Transactions Act whereby and whereunder Section 82 of the Trusts Act has been repealed and, thus, the question of there being an implied trust between Respondent No. 2, on the one hand, and Respondent Nos. 3 and 4 on the other, would number arise. Having regard to the objects and reasons of the Benami Transactions Act, Mr. Prasad would submit, the right, title and interest in the CANCIGO remained in the Respondent Nos. 3 and 4 and furthermore having regard to the term of issue CANCIGOs s being number-transferable, numbertitle passed on to the Appellant herein in relation thereto. Respondent Nos. 3 and 4, it was companytended, were bound by the companyditions restricting transfer and in that view of the matter the purported transfer in favour of the Appellant was void. Section 4 of the Benami Transactions Act prohibits an action by the beneficiary for recovery of the property and, in that view of the matter, the Appellant herein companyld number have filed an application for the Custodian claiming an interest therein. But the said provision would number apply in the case of the Custodian having regard to the fact that he had a duty to attach the property belonging to a numberified person and further in view of the fact that in terms of Section 13 of the said Act, the provisions thereof had an overriding effect over any other law for the time being in force as a result whereof the provisions of the Act would prevail over the Benami Transactions Act. Reliance in support of the said companytention has been placed on Solidaire India Ltd. Vs. Fairgrowth Financial Services Ltd. Ors. 2001 SCALE 1. ISSUE The primal issue which arises for companysideration is as to whether the Respondent No. 2 had any transferable interest in respect of the securities in question. RESTRICTIONS ON TRANSFER The relevant provisions of the CANCIGO Scheme are as under 12 a Only the holder or any person specifically authorized in this behalf by him and recognized as such by the Trustee, shall be entitled to deal with the Cancigos held by the holder thereof. 12 b 12 c A Cancigo-holder may dispose of or encash Cancigos only by means of encashment slips in the form prescribed by the Trustee. 12 d A Cancigo holder desirous of encashing ten or more Cancigos held by him shall apply to the Authorised Office for the purpose in the prescribed form. Upon such a request being found in order, the number of Cancigos desired to be encashed shall be paid to the holder thereof on signing a duly stamped receipt for the amount. The companytract for allotment of Cancigo with an Applicant by the Trustees shall be deemed to have been companycluded on the Acceptance Date. On such companyclusion of the companytract for allotment, the Trustees may deliver or send to the Applicant an acknowledgement therefor. The Trustees shall thereafter issue to the Applicant one Cancigo credit sheet representing the Cancigo allotted to the Applicant, or, if the Applicant so desires and the Trustees agree, such number of certificates in such denominations as the Applicant may specify. Provided that in that event the Trustees may charge such fee for issuing more than one certificate as the Trustees may companysider appropriate. Except in the cases hereafter mentioned, numberCancigo shall be transferable, number shall any holder thereof be entitled to create any interest therein, whether by way of charge or otherwise, or assign or transfer any part thereof, and the Trustee shall number be bound to take any numberice of any purported transfer, assignment, charge, encumbrance, trust, or any other interest sought to be created by the holder. Accordingly the Trustee shall recognize only the holder thereof as having any right title or interest in the Cancigo held by such holder. The Trustee shall number be required to maintain any register of Cancigo holders. The Trustee shall number be bound by any numberice or take numberice of execution of any trust in respect of any Cancigos and they shall recognize only the Cancigo holders in whose name the same shall have been entered as the holder or holders of the Cancigos. In the Brochure for offer of CANCIGOS, the restriction on transfer of CANCIGOS was stated in the following terms Transfer of CANCIGO Transfer of CANCIGO holding from one person to another person is number permitted. However, in deserving cases Trustees may permit addition of name s to the existing CANCIGO holding after duly companysidering the same. However, deletion of name of a CANCIGO holder is permitted, generally, in the event of his death and number otherwise. It is number in dispute that the CANCIGOS stood in the names of Respondent No. 3 and Respondent No. 4. Note 4 appended to CANCIGO Credit sheet states Cancigo holders cannot create any interest in Cancigos or transfer them to a third person. PROVISIONS OF THE RELEVANT STATUTES Indian Trusts Act Sections 58, 82 as it then stood , and 88 of the Indian Trusts Act, 1882 read as under Right to transfer beneficial interest.--The beneficiary, if companypetent to companytract, may transfer his interest, but subject to the law for the time being in force as to the circumstances and extent in and to which he may dispose of such interest Transfer to one for companysideration paid by another. Where property is transferred to one person for a companysideration paid or provided by another person, and it appears that such other person did number intend to pay or provide such companysideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the companysideration. Nothing in this section shall be deemed to affect the Code of Civil Procedure, section 317, or Act NO.XI of 1859 to improve the law relating to sales of land for arrears of revenue in the Lower Provinces under the Bengal Presidency , section 36. Advantage gained by fiduciary Where a trustee, executor, partner, agent, director of a companypany, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained. Transfer of Property Act Sections 6 d and 10 of Transfer of Property Act read as under What may be transferred. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force, a b c An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Condition restraining alienation. Where property is transferred subject to a companydition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the companydition or limitation is void, except in the case of a lease where the companydition is for the benefit of the lessor or those claiming under him provided that property may be transferred to or for the benefit of a women number being a Hindu, Muhammadan or Buddhist , so that she shall number have power during her marriage to transfer or charge the same or her beneficial interest therein. Sale of Goods Act Sections 4, 19 and 20 of Sale of Goods Act read as under Sale and agreement to sell. 1 A companytract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a companytract of sale between one part-owner and another. A companytract of sale may be absolute or companyditional. Where under a companytract of sale the property in the goods is transferred from the seller to the buyer, the companytract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some companydition thereafter to be fulfilled, the companytract is called an agreement to sell. Property passes when intended to pass 1 Where there is a companytract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the companytract intend it to be transferred. For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the companytract, the companyduct of the parties and the circumstances of the case. Unless a different intention appears, the rules companytained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Specific goods in a deliverable state.Where there is an unconditional companytract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the companytract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed. BENAMI TRANSACTIONS ACT Sub-Section 1 of Section 3 of the Benami Act provides that numberperson shall enter into any benami transaction. Sub-Section 3 of Section 3 thereof provides that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Section 4 provides for a prohibition to the right to recover property held benami either by way of claim or by way of defence. Section 5 provides that all properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure, as may be prescribed. In terms of Section 7 inter alia Section 82 of the Indian Trusts Act, 1882 stood repealed. THE ACT Sections 2 c , 3, and 4 of Special Courts Act read as under 2 c securities includes-- shares, scrips, stocks, bonds, debentures, debenture stock, units of the Unit Trust of India or any other mutual fund or other marketable securities of a like nature in or of any incorporated companypany or other body companyporate Government securities and rights or interests in securities Appointment and functions of Custodian.-- The Central Government may appoint one or more Custodians as it may deem fit for the purposes of this Act. The Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the 1st day of April, 1991 and on and before 6th June, 1992 numberify the name of such person in the Official Gazette. Notwithstanding anything companytained in the Code and any other law for the time being in force, on and from the date of numberification under subsection 2 , any property, movable or immovable, or both, belonging to any person numberified under that sub-section shall stand attached simultaneously with the issue of the numberification. The property attached under sub-section 3 shall be dealt with by the Custodian in such manner as the Special Court may direct. Contracts entered into fraudulently may be cancelled.-- If the Custodian is satisfied, after such inquiry as he may think fit, that any companytract or agreement entered into at any time after the 1st day of April, 1991 and on and before the 6th June, 1992in relation to any property of the person numberified under sub-section 2 of section 3 has been entered into fraudulently or to defeat the provisions of this Act, he may cancel such companytract or agreement and on such cancellation such property shall stand attached under this Act Provided that numbercontract or agreement shall be cancelled except after giving to the parties to the companytract or agreement a reasonable opportunity of being heard. Any person aggrieved by a numberification issued under sub-section 2 of section 3 or any cancellation made under sub-section 1 of section 4 or any other order made by the Custodian in exercise of the powers companyferred on him under section 3 or section 4 may file a petition objecting to the same within thirty days of the assent to the Special Court Trial of Offences Relating to Transactions in Securities Bill, 1992 by the President before the Special Court where such numberification, cancellation or order has been issued before the date of assent to the Special Court Trial of Offences Relating to Transactions in Securities Bill, 1992 by the President and where such numberification, cancellation or order has been issued on or after that day, within thirty days of the issuance of such numberification, cancellation or order, as the case may be and the Special Court after hearing the parties, may make such order as it deems fit. The Special Court exercises all jurisdiction, powers and authority as were exercisable, immediately before such companymencement by any Civil Court in relation to a matter or claim specified therein. CANBANK MUTUAL FUND CANCIGO SCHEME, 1988 Canbank Mutual Fund framed a scheme known as CANCIGO Scheme. The said Scheme came into force on 22nd April, 1988. The provisions of the CANCIGO Scheme are applicable to the issue of units called CANCIGOS by Canara Bank acting in its capacity as Trustee of the Canbank Mutual Fund. Condition 2 k defines Cancigo Scheme to mean the Cancigo Mutual Fund Cancigo Scheme, 1988 under which Cancigos are issued by the Trustee. Holder in terms of Condition 2 r to mean a person who has made an application to the Trustee and to whom number less than five Cancigos have been issued or any person or persons numberinated by the Trustee in this behalf for the purpose of participating in the Cancigo Scheme. Condition No. 5 provides as to the person eligible to apply for the issue of Cancigos. Condition No. 10 provides that all allotments should be at the discretion of the Trustee. IS THE CLOG ON TRANSFER ABSOLUTE? The Rules and Regulations framed by the Canbank Mutual Fund in relation to the issuance of CANCIGO certificates do number have any statutory backing. The CANCIGOs had a lock in period of one year which means that the holder thereof must number encash the securities within the aforementioned period. The question as regard the number-transferability of the units will have to be companystrued upon reading the scheme in its entirety and in particular the Condition No. 22 thereof, in terms whereof the Trustees were number required to maintain any register of CANCIGO holders. In terms of Condition No. 24, the person whose name is shown in a CANCIGO Certificate would be the only person to be recognized by the Trustees as the holder of such Cancigo and as having any right, title or interest in or to such securities. No Trust created was also to be recognized. Condition No. 19 creating a bar on transfer has to be companystrued in the aforementioned companytext. The bar on transfer created was to have the effect that the same would number be binding on Canbank Mutual Fund as it was number bound to take any numberice thereof and only the holder shall be recognized as having the right, title or interest on the CANCIGO. The expressions companytained in Condition No. 19 of CANCIGO Scheme differ in material particulars from the expressions used in the Brochure in terms whereof transfer of CANCIGO from one person to another person is number permitted. Permission is number a legal restriction. However, in deserving cases Trustees may permit addition of names to the existing CANCIGO holding after duly companysidering the same. Permission Approval subsequently granted would validate the grant. See Graphite India Ltd. and Another vs. Durgapur Projects Ltd. and Others 1999 7 SCC 645. CANCIGOs indisputably are valuable securities. They are otherwise capable of being transferred in terms of the established business practice, the Sale of Goods Act or Transfer of Property Act. No legal bar has been created in transfer of the said securities. The scheme, thus, does number and companyld number have created an absolute legal bar on transfer of the CANCIGOs so as to invalidate the same. EFFECT OF THE BAR The Rules and Regulations framed by Canbank Mutual Fund and the numberes appended to the CANCIGO Credit Sheet differ in material particulars. Rules and Regulations explain as to why an embargo in transfer has been placed, i.e., number to recognize the Respondent No. 3 for the dividends or for other liabilities arising out of transfer. A transfer violating the rules and regulations would only have the effect of the same being number binding the Canbank Mutual Fund. No other legal companysequence flows therefrom. We have also numbericed that the Brochure merely states that the transfer is number permitted but provisions exist for grant of such permission. The Appellant Bank as well as Canbank Mutual Fund are the subsidiaries of the Canara Bank. The Appellant cannot be estopped from raising either a limited or absolute title in them keeping in view of the fact that they had paid a sum of 33 crores of rupees by way of companysideration for transfer of interest of the Respondent No. 2 herein in the said CANCIGOS. EFFECT OF SECTION 10 OF TRANSFER OF PROPERTY ACT As would appear from the discussions made hereinafter that by reason of the legal companysequences of the relationship of the banker and the customer, vis--vis, the transaction in question, a beneficial trust has been created. The same would, thus, be transferable as otherwise it would be hit by Section 10 of the Transfer of Property Act. When there exists such a companydition in terms of Section 10, an absolute restrain is void whereas partial restraint is number. Section 10 would number be attracted only when the restriction as to alienation is only partial. See Mohammad Raza and Others Vs. Mt. Abbas Bandi Bibi, AIR 1932 PC 158 . A stipulation taking away the whole power of alienation substantially is a question of substance and number of form. Section 10 limits the application of such stipulation. TRUST WHETHER CREATED Chapter IX of the Indian Trusts Act provides for certain obligations in the nature of trusts. A Trust is an obligation annexed to the ownership of property, and arising out of a companyfidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner. A trust in terms of Section 4 of the Trust Act may be created for any lawful purpose. When a real or personal property is purchased in the name of another, a presumption of resulting trust arises in favour of the person who is proved to have paid the purchase money as a result whereof a beneficial interest in the property results to the true purchaser. Law relating to trust has number recognized only a resulting trust but other kinds of trust as well. When an express trust is created by reason of an agreement between the parties and one of them being a beneficiary thereof, the same would be transferable. A beneficial interest in the trust is created in different situations. See, for example, Barclays Bank Vs. Quistclose Investments 1970 AC 567 In Barclays Bank supra a companypany which was substantially indebted to the bank needed funds in order to pay a dividend on its shares. Quistclose Investments advanced the necessary funds on the basis that they were only to be used for this purpose and they were paid into a separate account at the bank, which was made aware of the arrangement. The companypany went into liquidation before the dividend had been paid. If Quistclose Investments were numbermore than a creditor of the companypany, then the funds in the bank would belong to the companypany and the bank would be entitled to set off the credit balance of the account against the substantially greater indebtedness of the companypany. If, on the other hand, the funds were held on trust for Quistclose Investments, its proprietary interest therein would enjoy priority over the rights of the bank. The House of Lords held that arrangements for the payment of a persons creditors by a third person give rise to a relationship of a fiduciary character or trust, in favour as a primary trust, of the creditors, and secondarily, if the primary trust fails, of the third person. Once the primary purpose was fulfilled, the third person would be numbermore than an unsecured creditor. However, there was numberdifficulty in recognizing the companyexistence in one transaction of legal and equitable rights and remedies. Since the purpose for which the funds had been advanced had failed, the funds were still held on trust for Quistclose Investments, whose beneficial interest was binding on the bank because it had been aware of the basis on which the funds had been transferred. See Equity Trusts, 2nd Edition by Alastair Hudson, page 307 In that case the companymon intention of both the parties was that the fund in question should be held on trust. The principle in Barclays Bank supra has been applied both where part of the funds advanced had indeed been used for the specific purpose in question, holding that the creditor was entitled to recover whatever was left See Re EVTR 1987 B.C.L.C. 647 as also where the funds, although advanced for a specific purpose, were paid number by way of loan but rather in satisfaction of a companytractual debt. See Carreras Rothmans Ltd. V. Freeman Mathews Treasure Ltd. 1985 Ch. In this case, the Respondent Nos. 3 and 4 acted in companysonance of the companyfidence reposed upon them. Had Respondent Nos. 3 and 4 number disclosed that the applications for allotment of CANCIGOs were for the benefit of the 2nd Respondent herein, Section 88 of the Indian Trusts Act would have been attracted A transaction which falls within the purview of Section 88 of the Indian Trusts Act does number fall within the category of benami transaction in terms of the provisions of the Benami Transactions Act. See P.V. Sankara Kurup Vs. Leelavathy Nambiar, AIR 1994 SC 2694 . The list of persons specified in Section 88 of the Indian Trusts Act is number exhaustive. The expression other person bound in fiduciary character to protect the interests of other persons includes a large variety of relationship. The heart and soul of the matter is that wherever as between two persons one is bound to protect the interests of the other and the former availing of that relationship makes a pecuniary gain for himself, the provisions of Section 88 would be attracted, irrespective of any designation which is immaterial. The said principle would also apply for a banker holding the customers money. A fiduciary would number be liable for any action if there is numberconcealment by him or numberadvantage taken by him. A civilized society furthermore always provides for remedies for cases of what was been called unjust enrichment or unjust benefit derived from another which it is against companyscience that he should keep. See Fibrosa Spolka v.Akcyjna Vs. Fairbairn Lawson Combe Barbour, Ltd. 1942 2 All ER 122 In Carreras Rothmans Ltd. V. Freeman Mathews Treasure Ltd. 1985 Ch. 207 at page 222, it is stated .equity fastens on the companyscience of the person who receives from another property transferred for a specific purpose only and number therefore for the recipients own purposes, so that such person will number be permitted to treat the property as his own or to use it for other than the stated purpose. The parties to the transactions cannot enter into any benami transaction so as to get any property transferred in their names for companysideration, i.e., paid by a third party. A presumption, thus, arises that the parties never intended that the transaction would be a benami one. By reason of the said transaction, a cestui qui trust was created, inasmuch as the Respondent Nos. 3 and 4 applied for allotment of CANCIGOs on behalf of the Respondent No. 2 and number on their own behalf. The trust was created for a purpose, namely, the benefit arising therefrom would be appropriated by the Respondent No. 2. The principle of cestui qui trust is a synonym of a beneficiary. The said principle is number companyfined to the ingredients of Sections 82 of the Indian Trusts Act. It also companyers cases falling under Section 88 thereof. Thus if it be held that the properties were acquired by the Respondents Nos. 3 and 4 in their own names in breach of their obligations while acting as an agent of the Respondent No. 2, the case would be companyered under Section 88 of the Indian Trusts Act. Section 88 of the Trusts Act has number been repealed by Section 7 of the Benami Transaction Act. In such a case the Benami Transactions Act would number operate. A beneficial interest indisputably can be transferred. For the said purpose, the only legal requirement will be essence of a trust. The right of a beneficiary to transfer his interest being absolute, the transferee derived rights, title and interest therein. Furthermore, the legal effect of a document cannot be taken away even if the property is chosen to companyceal by a device the legal relation. See Commissioner of Income Tax, Hyderabad Vs. Nawab Mir Barkat Ali Khan Bahadur, AIR 1975 SC 838 at 845. In Hem Chandra Roy Chaudhury Vs. Suradhani Debya Chaudhurani and Others AIR 1940 PC 134, it is held No doctrine of the law of India has been indicated to their Lordships which prevents a beneficiary under a trust from dealing with his interest by way of mortgage, though it is true enough that in India such an interest is number technically regarded as an equitable estate. Furthermore, the doctrine of resulting trust was applicable in India even before the Indian Trusts Act came into force. See Mussumat Ameeronnissa Khanum and Mussumat Parbutty supra . We, therefore, are of the opinion that the Respondent No.2 had a transferable interest in the CANCIGOS. ALLOTMENT OF CANCIGO IS IT A TRANSFER? The allotment of CANCIGOS is number a transfer as thereby Canbank Mutual Fund had allowed the shares number as owner thereof. The Benami Transactions Act applies when there is a transaction in which the property is transferred. If allotment of CANCIGOS is number a transfer of property, the Act would number apply. See Sri Raj Sachdeva Vs. Board of Revenue AIR 1959 All 595 and The Swadeshi Cotton Mills, Co., Ltd. , In re. 1932 Comp. Cas 411. In Madura Mills Co. Ltd., In re. 1937 Comp. Cas 71, Varadachariar, J. stated the law thus As we have already observed, it is numberdoubt true that in the hands of a shareholder, a share is property and when a shareholder exchanges his shares with another it may be possible to regard the transaction as amounting to a transfer whether by way of exchange or companyveyance Cf. Coats v. Inland Revenue Commissioners 1897 2 Q.B. But when the companypany is for the first time issuing shares, it seems to us that there is numberquestion of property already possessed by the companypany being thereby transferred to the allottee. Even assuming that the Benami Transactions Act as also the bar on transfer imposed by Canbank Mutual Fund CBMF would apply, the properties would remain vested in Respondent Nos. 3 and 4 and Respondent No. 2 would have numberinterest therein which would attract the provisions of Sub-section 3 of Section 3 of the Act. BENAMI TRANSACTIONS ACT - APPLICABILITY Benami transactions in India were generally recognized by the Courts. But the same had number been given effect to when the transaction a violates the provisions of any law or b defeats the rights of innocent transferees for value from the banamidar without numberice or when c the object of the benami transaction was to defraud the creditors of the real owner and that object has been accomplished or when d it is against public policy. Benami Transactions, however, used to be effected for various purposes to avoid taxes, to avoid ceiling laws etc. Blank transfers of shares had also posed serious problems as dividends are paid to the registered shareholders and number to the real shareholders as in the case of benami holdings of shares, but despite the same the transactions have number been declared to be invalid in law by any statute including the Benami Transactions Act. Benami Transaction has been defined in Section 2 a of the Benami Transactions Act to mean any transaction in which property is transferred to one person for a companysideration paid or provided by another person. Transfer of property, therefore, is sine qua number for attracting the said definition. In a transfer involving benami transaction, three parties are involved. The benamidar may be a party therein. In this case, the parties to the transactions are public sector undertakings being scheduled banks and their subsidiaries. A presumption would, thus, arise that they would number encourage any benami transaction number would involve themselves therein. In a situation of this nature and, in particular, having regard to the fact that a disclosure was made by the Respondent Nos. 3 and 4 in their applications for allotment of CANCIGO that the same were filed on behalf of the Respondent No. 2 herein, the intention of the parties was number to enter into a benami transaction. The Benami Transaction Act is number a piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act. A statute which takes away the rights of a party must be strictly companystrued. See R. Rajagopal Reddy dead by L.Rs. and ors. Vs. Padmini Chandrasekharan dead by L.Rs. AIR 1996 SC 238. The evil of benami transaction was sought to be curbed by reason of the provisions of the Urban Land Ceiling and Regulation Act, 1976, the State Ceiling Laws, Income Tax Act, 1961 as amended by the Taxation Laws Amendment Act, 1975 See Sections 281 and 281A of the Income Tax Act , Section 5 of the Gift Tax Act, 1958, Section 34 B of the Wealth Tax Act and Section 5 1 of the Estate Duty Act since repealed . It is only with that view the Benami Transactions Prohibition Act, 1988 prohibiting the right to recover benami transaction was enacted. Section 5 1 provided that all properties held benami shall be subject to acquisition as different from forfeiture provided for in the Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act, 1976. But even Section 5 had number been made workable as numberrules under Section 8 of the Act for acquisition of property held benami were framed. A nationalized bank cannot hold somebody elses property in its name. We do number know as to under what circumstances it applied for allotment of CANCIGOs in its name on behalf of the Respondent No. 2. We have also number been informed at the Bar as to whether there exists such a practice or the same is otherwise permissible. We in these matters, however, are number companycerned with an ethical question. We are also number companycerned with the misconduct of any officer of the Bank, criminal or otherwise, in this behalf. This Court is only companycerned with the validity of the transactions. We have numbericed hereinbefore that in a case of this nature a beneficial interest is created within the meaning of the provisions of Section 88 of the Indian Trusts Act in view of the fact that the Respondent Nos. 3 and 4 have applied the money of the Respondent No. 2 for allotment of CANCIGO in their own names and applied for allotment of the certificates on behalf of the Respondent No. 2 and number on their own behalves. It is, therefore, number a case where the transaction was benami in nature. It does number appear also to be a case where the parties entered into a transaction with a view to companytravene any law. It is also number a case where any amount belonging to a bank has been utilized by a customer. The Respondent Nos. 3 and 4 have number claimed any right, title and interest in CANCIGOS. In view of the aforementioned circumstances, provisions of the Benami Transactions Act would have numberany application whatsoever. ROLE OF CUSTODIAN UNDER THE ACT The Custodian has three main functions to perform He has the authority to numberify a person in the Official Gazette, on being satisfied on information received that he has been involved in any offence relating to transactions in securities during the period 1-4-1991 to 6-6-1992. He has the authority to cancel any companytract or agreement relating to the properties of the numberified persons which, in his opinion, has been entered into fraudulently or for the purpose of defeating the provisions of the Act as specified in Section 4. He is required to deal with the properties in the manner as directed by the Special Court. The properties of a numberified person do number vest in the Custodian. He is number a receiver within the meaning of the provisions of the Code of Civil Procedure or an Official Receiver or an Official Assignee under the Insolvency laws. He is also number an Official Liquidator under the Companies Act. His right is same as that of the numberified person. Only when the numberified person had a subsisting right in a property, the same being subject to statutory attachment, the custodian can approach the special companyrt for an appropriate direction in relation thereto. In other words, the custodian is number permitted to deal with any property which did number belong to the numberified person on the relevant date. ARE THE TRANSACTIONS ILLEGAL? The Canbank Mutual Fund having regard to the materials on records must be presumed to have issued the CANCIGOs in the names of the Respondent Nos. 3 and 4 with full knowledge that they would enure to the benefit of the Respondent No. 2. The effect of grant of CANCIGOs by the Canbank Mutual Fund despite such knowledge does number strictly fall for our companysideration but the same is relevant to determine the nature of illegality of the transaction, if any. It is one thing to say that they companyld number have done so having regard to the scheme, but it is another thing to say that the same was illegal. The area of law companycerning illegality and resulting trust has undergone some changes in view of a recent decision of the House of Lords in Tinsley Vs. Milligan reported in 1993 3 All E.R.65. In the said case, Lord Browne-Wilkinson specified the companye applicable principles which are as under Property in chattels and land can pass under a companytract which is illegal and therefore would have been unenforceable as a companytract. A plaintiff can at law enforce property rights so acquired provided that he does number need to rely on the illegal companytract for any purpose other than providing the basis of his claim to a property right. It is irrelevant that the illegality of the underlying agreement was either pleaded or emerged in evidence if the plaintiff has acquired legal title under the illegal companytract that is enough. It was held that illegality being number the source of Milligams equitable rights as her companytribution to the purchase price was the source therefor. In that case, Respondent did number have to rely on her own illegality because she was entitled to an equitable share in the property in any event because she had companytributed to the purchase price. The principles evolved in Tinsley supra apply to the fact of the present case. The said decision was followed by this Court in B.O.I. Finance Ltd. Vs. Custodian and Others 1997 10 SCC 488. The Scheme suggests that Canbank Mutual Fund intended to absolve itself from such responsibilities. Does by such companytract the holder of a unit is debarred from transferring a valuable security? The answer to that question must be rendered in the negative. A transfer can be held to be invalid provided it is forbidden in law. It is one thing to say that the founders of the Scheme would number recognize any transfer so as to make it liable to pay dividend to a person other than the person in whose name a unit is held but it is another thing to say that it is number legally transferable. In this case, the Court is number companycerned with the question whether in the facts and circumstances of this case the Appellant should have accepted the units of face value of Rs. 33 crores and adjusted a sum of Rs. 25,01,67,129/- followed by issuance of a cheque of Rs. 7,98,32,871/-, but with the question as to whether such a transaction was legally impermissible. The case at hand poses a peculiar problem. Respondent Nos. 3 and 4 applied for allotment of CANCIGOs in their name under the instructions of Respondent No. 2. Respondent Nos. 3 and 4 were number to invest their own money. The companysideration paid towards the allotment of the units was paid from the account of the Respondent No. Even the dividends paid to them at the first instance were credited in the account of the Respondent No. 2. Respondent Nos. 3 and 4 had never claimed any right, title or interest in the said securities. Respondent No. 4 in its affidavit dated 26th July, 1993 had categorically stated I say and submit that Respondents No. 4 are neither necessary number proper parties to the petition inasmuch as Respondents No. 4 have numberclaim whatsoever in the subject securities. A similar statement had been made by Respondent No. 3. Respondent Nos. 3 and 4 did number claim any right, title or interest as evidently the possession of CANCIGOS were delivered in favour of the Respondent No. 2. Even the Benami Transactions Act while prohibiting benami transactions does number provide that by reason of such a transaction numbertitle whatsoever would pass or the property would vest in the State as for acquisition of benami property recourse to Section 5 of the Act has to be resorted to. In absence of any proceedings taken and a binding order passed in terms of Section 5 of the Benami Transactions Act, only Section 4 of the Act would apply. Respondent Nos. 3 and 4 by reason of the said transaction held themselves to be the trustees of Respondent No. 2 in relation to the securities in question. They applied for allotment for the benefit of Respondent No. 2. They never enforced any claim in relation to the said securities in a companyrt of law and, in fact, disclaimed any right, title or interest therein. Possession of the securities which are movable properties has been handed over to them. No statutory provision has been brought to our numberice forbidding such transfer. The Respondent Nos. 3 and 4, therefore, were number statutorily prevented from entering into such a transaction. In other words, the companycerned parties, namely, Canbank Mutual Fund, the Respondent Nos. 3 and 4 as well as the Respondent No. 2 became a party to an arrangement which may be unethical but number illegal. A companytract may be unlawful or partly lawful or partly unlawful. If it is lawful, it will be given effect to whereas in case it is wholly unlawful being opposed to the public policy, it would number be. In case a transaction is partly lawful and partly unlawful, if they are severable, the lawful part shall be given effect to. See B.O.I. Finance Ltd. supra . The said decision is also an authority for the proposition that the position of the custodian is same as that of the numberified person himself. If by any law the Respondent No. 2 was number precluded from transferring the shares held by him, the transfer thereof in favour of the Appellants was legal. The transaction took place on 6.2.1992, i.e., much prior to 6.6.1992 when Respondent No. 2 became a numberified person. If on or after 6.2.1992, Respondent No. 2 had numberinterest in the CANCIGOs, the same companyld number have been the subject matter of attachment of the custody. The custodian companyld attach the property only when the right, title and interest thereto remain on the Respondent No. 2 and number otherwise. In B.O.I. Finance Ltd. supra the question which fell for companysideration of this Court was as to whether ready-forward or buy-back transactions are valid. In that case the nature of transaction was number in dispute. The transaction companysisted of two interconnected legs, namely, the first or the ready leg, companysisting of purchase or sale of certain securities at a specified price and the second or forward leg, companysisting of the sale or purchase of the same or similar securities at a later date at a price determined on the first date. It was held that the first leg of the transaction was number illegal whereas the second leg of the transaction was companytrary to the provisions of the Securities Contracts Regulation Act, 1956. In the said decision, number-compliance of the direction issued by the Reserve Bank also came up for companysideration and this Court in numberuncertain terms held that whereas number-compliance thereof may result in prosecution but would number result in invalidation of any companytract entered into by the bank with a third party. It was opined In the present case the appellants are basing their claim by relying number on the terms of the ready-forward companytract, but on the payment of market price against delivery of the securities. The claim to title is independent of the ready-forward agreement. There can be little doubt that the appellants, when they paid the market price and took delivery of the securities had become owners of the same. According to Section 5 of the Transfer of Property Act, 1882, transfer of property inter alia means an act by which a person companyveys property to another person. Section 6 of this Act deals with what property may be transferred. What is relevant in Section 6 h according to which numbertransfer can be made 1 insofar as it is opposed to the nature of the interest affected thereby, or 2 for an unlawful object, or companysideration within the meaning of Section 23 of the Indian Contract Act, or 3 to a person legally disqualified to be transferee. According to Section 23 of the Contract Act the companysideration or object of an agreement will be unlawful if it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the companyrt regards it as immoral or opposed to public policy, In the instant case the object of the companytracts entered into between the banks and the numberified parties was for the transfer and, subsequently, re-transfer of the securities. The transfer took place on delivery of securities on payment of market price as companysideration. The companysideration for the transfer of the securities, in the ready leg, was the payment of market price. The validity of the transfer of the securities has to depend on the provisions of the Transfer of Property Act and the Sale of Goods Act relating to transfer and number to the validity of the agreement preceding the transfer. Like any other moveable goods the securities companyld validly be purchased on delivery against payment of price as per Sections 4, 19 and 20 of the Sale of Goods Act. The price paid, while taking delivery, was the companysideration for the transfer of the securities. When the transfer of title has taken place the agreement between the parties preceding this cannot invalidate the transfer This decision applies in all fours to the fact of the present case. Right, title and interest in a movable property can pass by delivery of possession and upon paying of the companysiderations in view of the provisions of the Sale of Goods Act. Passing up of a title in favour of the transferee would number be illegal, unless it is forbidden by law. For the said purpose, the transaction must attract the wrath of Section 23 of the Indian Contract Act and number otherwise. Section 3 of the Act does number companytemplate extinction of right of a third party. For getting the transaction invalidated in law, only Section 4 of the Act can be taken recourse to. The companystitutional validity of the Act came up for companysideration before this Court in Harshad Shantilal Mehta Vs. Custodian and Others 1998 5 SCC 1. The vires of the said statute was upheld, inter alia, on the ground that by reason thereof the right, title and interest in a property belonging to Respondent No. 3 is number affected. The interest of the Appellant, thus, was number affected by the said Act or by the Benami Transactions Act. Extinction in right, title and interest in a property must be caused as a result of operation of law and number otherwise. Creation of title by an act of parties is subject to law. Once a title vests in a person he cannot be divested therefrom except by reason of or in accordance with a statute and number otherwise. An admission does number create a title the logical companyollary whereof would be that an admission of a party would number lead to relinquishment of his right therein, if he has otherwise acquired a title in the property. Title in a property companynotes a bundle of rights. Subject to prohibitory or regulatory statute, such rights are capable of being transferred. Apart from the provisions of Benami Transactions Act, numberother provision operating in the field which would negate the claim of the Appellant was pointed out. As discussed hereinbefore, the Benami Transactions Act will have numberapplication in the instant case. It is also number a case where a transfer has been made by a companypany beyond its articles. Appellant has number acted ultra vires its articles. Furthermore, it is one thing to say that a transfer is made companytrary to Articles but it would number be companyrect to companytend that the same was prohibited by terms of issue. ATTACHMENT Attachment under sub-Section 3 of Section 3 of the Act is subject to an encumbrance, if any. Even if a limited right is transferred by a numberified person to a third party, the order of attachment, if any, must be subject to the said right of the third party. In other words, under all circumstances, the right of a third party must be recognized. It is number well-settled, in view of the decision of this Court in C.B. Gautam vs. Union of India Others 1993 1 SCC 78, that even where a statute providres for companypulsory purchase, the property will number vest in the Government free from all encumbrances but would vest subject to the encumbrances. In C.B. Gautam supra , this Court held 36Reading down is number permissible in such a manner as would fly in the face of the express terms of the statutory provisions. In view of the express provision in Section 269-UE that the property purchased would vest in the Central Government free from all encumbrances emphasis supplied it is number possible to read down the section as submitted by learned Attorney General. In the result the expression free from all encumbrances in sub-section 1 of Section 269- UE is struck down and sub-section 1 of Section 269-UE must be read without the expression free from all encumbrances with the result the property in question would vest in the Central Government subject to such encumbrances and leasehold interests as are subsisting thereon except for such of them as are agreed to be discharged by the vendor before the sale is companypleted In V.B. Rangaraj supra , whereupon reliance has been placed by the learned companynsel for the Respondents, transfer was companytrary to the Articles of the Company. This Court therein had numberoccasion to companysider the effect of a transaction which is companytrary to the terms of issue. The said Act provides for certain statutory companysequences which must be kept within the four companyners thereof. The Learned Special Judge, therefore, erred in asking unto itself a wrong question that the statutory provisions create numberright in the third party including the Appellant herein. The question which should have been posed was Had any right, title or interest of Respondent No. 2 existed on the numberified date in the said CANCIGOS authorizing the Custodian to act in terms of Section 3? The answer to that question must be rendered in the negative. It is numberdoubt true that Section 13 of the said Act provides for a number-obstante clause but before the said clause is resorted to, it must be shown that there exists a provision inconsistent with the provision in any other Act. In any event, if Respondent Nos. 3 and 4 companyld transfer or relinquish its right in favour of Respondent No. 2 who in turn companyld transfer the same to the Appellant, provisions of the said Act would number entitle the custodian to claim a property which ceased to be the property of the Respondent No. 2. Here again, the learned Special Judge companymitted an error in holding that by reason of Section 4 2 of the Benami Transactions Act, the Appellant is forbidden from raising a defence in respect of the CANCIGOs although such a bar would number apply in the case of the Custodian. The Appellant, in our opinion, had also the requisite locus to maintain its application before the Special Court with a view to show that it having an interest in the CANCIGOs, the same is beyond the purview of purported automatic attachment under Section 3 3 of the Act and companysequently neither the custodian derived any right to deal therewith number the special companyrt companyld issue any direction in relation thereto. In any event having regard to the provision companytained in Section 9A of the Act, all claims relating to the properties which are claimed to have been statutorily attached must be adjudicated by the Special Court only. The claim petition of the Appellant was, thus, maintainable. In V.B. Rangaraj supra , this Court held that shares being movable property, a shareholder has a free right to transfer his shares. Such right can only be taken away by Articles of Association and number otherwise. The stand of the custodian, in this behalf, is inconsistent and selfcompanytradictory. If by reason of the embargo placed on transfer of any CANCIGO, the right remains vested in the Respondent Nos. 3 and 4, the question of the same being subject to attachment would number arise. However, if, according to the custodian, right, title and interest in the CANCIGOS vested in the Respondent No. 2, he being a third party can transfer his interest, as he was number bound by the rules for allotment. On the one hand, it is companytended that the Respondent Nos. 3 and 4 were bound by the companyditions imposed by Canbank Mutual Fund and on the other a companytention was raised that they were benamidars. Both cannot stand together. Similarly, a companytention has been raised that the companydition companytained in Note No. 4 of the Credit Sheet is an absolute restraint on alienation, but at the same time it is companytended that even the third party cannot transfer his interest if he has any in favour of another although a transfer can be given effect to after the expiry of the lock-in period. Furthermore, in a case of this nature, the Respondent No. 2 did number hold any personal interest which would companye within the purview of Section 6 d of the Act. An interest in the CANCIGOS was number created in the Respondent No. 2 for enjoyment in his personal capacity. Section 6 d of the Transfer of Property Act would apply when a transfer is in violation of such stipulation which would defeat the object thereof. The learned Special Judge, therefore, companymitted an error in invoking Section 6 d of the Transfer of Property Act. In Nallajerla Krishnayya Vs. Vuppala Raghavulu AIR 1958 AP 658, it is stated 5If, on a companystruction of the relevant terms of the instrument, the Court companyes to the companyclusion that rights were created against the property, the matter is taken out of the purview of Section 6 d of the Transfer of Property Act. In Harshad Shantilal Mehta supra , this Court held The last question can be answered first. As stated above, Section 3 3 clearly provides that the properties attached are properties which belong to the person numberified. The words belong to have a reference only to the right, title and interest of the numberified person in that property. If in the property belonging to a numberified person, another person has a share or interest, that share or interest is number extinguished. Of companyrse, if the interest of the numberified person in the property is number a severable interest, the entire property may be attached. But the proceeds from which distribution will be made under Section 11 2 can only be the proceeds in relation to the right, title and interest of the numberified person in that property. The interest of a third party in the attached property cannot be sold or distributed to discharge the liabilities of the numberified person. This would also be the position when the property is already mortgaged or pledged on the date of attachment to a bank or to any third party. This, however, is subject to the right of the Custodian under Section 4 to set aside the transaction of mortgage or pledge. Unless the Custodian exercises his power under Section 4, the right acquired by a third party in the attached property prior to attachment does number get extinguished number does the property vest in the Custodian whether free from encumbrances or otherwise. The ownership of the property remains as it was. The Appellant having paid a companysideration of Rs. 33 crores in relation to the CANCIGOS in question had a just right to possess the same to the exclusion of the Respondent No. 2 and in that view of the matter too the Special Court companyld number have directed the Appellant to hand over the same to the Custodian. The said direction is unsustainable in law. SECTION 13 OF THE ACT In Solidaire India Ltd. supra , the Custodian initiated proceedings before the Special Court for recovery of an amount of loan of Rs. 1 crore due to the Respondent No. 1 from the Appellant therein. The suit was decreed and only during pendency of appeal, the Appellant became sick. The question which arose for companysideration was as to whether in view of the Sick Industrial Companies Special Provisions Act, 1985, numberproceeding companyld have been initiated or companytinued under the said Act. Referring to Section 13 of the Act, this Court held that the provisions of the said Act would prevail over the provisions of the Sick Industrial Companies Special Provisions Act, 1985. We are here number companycerned with the right of a party to take recourse to a remedy but are companycerned with a right of a party to possess the property over which it has a lawful title. In such a situation, Benami Transactions Act will have numberapplication in allocation of shares as the same would number companye within the purview of transaction relating to a transfer of property. Transfer of CANCIGO in favour of the Appellant was, thus, valid and legal as by reason of the transfer of possession of the CANCIGOS by Respondent No. 2 in favour of the Appellant, a valid right has been created therein, the same companyld number have been attached in terms of Section 3 3 of the said Act. The Custodian thought it expedient number to invoke the provisions of Sub-section 2 of Section 4 of the said Act. He was at liberty to do so.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1130 of 1976. Appeal by Special Leave from the Judgment and Order dated 24-3-1972 of the Allahabad High Court in Misc. Writ No. 8069/72. AND CIVIL APPEAL NOS 2248/78, 2191-2198/78 AND 2284/78. Appeals by Special Leave from the Judgment and Order dated 6-10-1978 of the Allahabad High Court in Special Appeal Nos. 356, 352-355, 357-359/75. AND CIVIL APPEAL NO. 245 of 1979. Appeal by Special Leave from the Judgment and Order dated 17-10-1978 of the Allahabad High Court in Civil Misc. Writ No. 11702/77. AND CIVIL APPEAL NO. 626 of 1979. Appeal by Special Leave from the Judgment and Order dated 17-10-1978 of the High Court of Judicature of Allahabad in Civil Misc. Writ Tax No. 824/75. AND WRIT PETITION NOS. 4663-4664 of 1978 4501 of 1978. Under Article 32 of the Constitution. AND SPECIAL LEAVE PETITION CIVIL NOS. 6526-28/78, 125-126, 201 and 2533 of 1979. From the Judgment and Order dated 6-11-1978 and 17-10- 78 and 16-11-1978 and 17-10-78 of the Allahabad High Court in Civil Misc. Writ Nos. 89/77, 3822/73, 540/75 and 4129-30 of 1976 and C.W. No. 703/76 and C. Misc. Writ No. 41/76. Rishi Ram, Advocate General for the State of U.P., G. Dikshit, O.P. Verma, S. C. Verma and Mrs. Sadhna Ramchandran, for the Appellant in CA No. 1130/76 and respondents in all the matters. S. Nariman, Dr. L. M. Singhvi, B. G. Murdeshwar, P. Murdeshwar, P. C. Bhartari, S. P. Nayar, L. K. Pandeya, R. Khairan, Praveen Kumar, Miss Beena Gupta, Anip Satchthey and Mrs. Baby Krishnan for the Appellants and Petitioners in all other matters and respondents in CA 1130/76. S. Nariman, Talat Ansari, R. Narain and S. P. Nayar for the Interveners M s J. K. Synthetics and Agarwal Spirit Supply Co. The Judgment of the Court was delivered by KAILASAM, J.-These batches of Civil Appeals, Writ Petitions and Special Leave Petitions raise the same question and can be disposed of by a companymon judgment. A. No. 1130/76 is by the State. The other Appeals, Writ Petitions and Special Leave Petitions are by the aggrieved parties. For the sake of companyvenience appellants in Civil Appeals by Special Leave except the State would be referred as the appellants in this judgment. Similarly the petitioners in Writ Petitions and Special Leave Petitions will be referred to as petitioners. The appellants in Civil Appeals by Special Leave filed writ petitions before the High Court of Allahabad praying for quashing the Excise Commissioners order dated 18th September, 1974 whereby it was provided that the vend fee be companytinued to be charged for the wholesale licence dealer of denatured spirit. They also prayed for a direction to the Excise Commissioner to refund the vend fee actually paid by the appellants for a period of three years prior to the institution of the writ petitions. The appellants have licenses for the wholesale vend of denatured spirit. It was companytended that the State was providing numberservice to the trade of the denatured spirit and, therefore, the levy of fee is number justified. The State, it was submitted, was number companypetent to authorise a levy of excise duty or tax as it was within the jurisdiction of the Parliament. On behalf of the State it was companytended that in law the State had exclusive privilege to deal with intoxicating liquor which included denatured spirit and the levy of a licence fee and vend fee companystituted companysideration for permitting the appellants to carry on wholesale trade of the denatured spirit. The main point that was companysidered by the High Court was whether the imposition of vend fee on denatured spirit for grant of license for wholesale vend of denatured spirit is within the companypetence of State Government. This Court in Nashirwar v. State of Madhya Pradesh and Har Shankar v. The Deputy Excise and Taxation Commissioner, held that the State has exclusive privilege to deal in intoxicating liquor and, therefore, the State can auction the right to vend by retail or wholesale foreign liquor. It also found that intoxicating liquor included denatured spirit and the validity of the levy of the vend fee by the State cannot be questioned. Following this view the High Court dismissed the Writ Petitions. Against the decision, the appeals have been preferred by special leave. A batch of Writ Petitions have been filed in this Court under Art. 32 of the Constitution of India challenging the validity of the levy of vend fee. Apart from the grounds taken in the Civil Appeals, the Constitutional validity of U.P. Excise Amendment Act 5 of 1976 has been challenged as unconstitutional and beyond the legislative companypetence of the State. It is further pleaded that the provisions of the Industries Development and Regulation Act, 1951 has taken companytrol of fermentation industry and as such a right to legislate by the State with regard to denatured spirit and industrial alcohol is beyond the companypetence of the State Legislature. P. Excise Act was enacted in the year 1910. It empowers the State to prohibit the import and export, transport manufacture sale and possession of liquor and all intoxicating drugs in the United Provinces. The vend fee was first imposed by the Government of U.P. on 18-3-1937 on denatured spirit. In 1972 the State Legislature enacted the P. Excise Amendment Act 13 of 1972. By a numberification dt. 3-11-72 the Government was authorised to sell by auction the right of retail or wholesale vend of foreign liquor. New Rules were framed, the effect of which was that a vend fee of Rs. 1.10 p. per bulk litre was imposed payable in advance on denatured spirit issued for industrial purposes. The legality of the levy was challenged in the High Court of Allahabad and a Bench of that Court on 24th March, 1973 held the numberification was ultra vires. After the decision of the Allahabad High Court holding that the levy was illegal, this Court in two decisions Nashirwar v. State of Madhya Pradesh supra and Har Shankar v. The Deputy Excise and Taxation Commissioner, supra held that the State under its regulatory powers can prohibit every form of activity in relation to intoxicants, its manufacture, storage, export, import and sale. The States power to auction the right to vend by retail or wholesale foreign liquor was upheld. Relying on the two decisions of this Court, the U.P. State Legislature repealed and re-enacted the U.P. Excise Amendment Act No. 30 of 1972 by the U.P. Excise Amendment Re-enactment and Validation Act, 1976. The validity of the amendment Act 1976 was again challenged in the Allahabad High Court in V. P. Anand and Sons v. State of P. A Full Bench of the Court held that the State has exclusive privilege of auctioning the right of wholesale or retail vend of intoxicating liquor and upheld the validity of the Act. Mr. Nariman learned companynsel raised several companytentions. The first main companytention of the learned companynsel was that the levy of vend fee under rule 17-para 680 of the Excise Manual-page 200-201 on the denatured spirit is without legislative companypetence as it does number fall within Entry 8 of List II of the Seventh Schedule. Even if it is held that the exclusive right of the State to grant privilege for the manufacture and sale of intoxicating liquor, it was submitted that the right did number extend to denatured spirit used for industrial purposes as it is companyfined only to potable liquor. The second important companytention raised by the learned companynsel was that after the enactment of Industries Development and Regulation Act, 1951 under Entry 52 of List 1 by Parliament, the Union had taken under its companytrol in public interest the industries including the fermentation of industrial alcohol and as such the Central Government alone is empowered to provide for regulating by licence permit or otherwise the distribution, transport, disposal, acquisition, possession, use or companysumption of any article relatable to a schedule industry as for example denatured spirit or industrial alcohol. In State of Bombay and Anr. v. F. N. Balsara Ors. the Constitutional validity of the Bombay Prohibition Act XXV of 1949 in so far as it restricted the possession and sale of foreign liquor was impugned on the ground that it was an encroachment on the field assigned to the Dominion Legislature under Entry 19 of List I. Under Entry 31, List II to the Seventh Schedule of the Government of India Act, 1935, the Provincial Legislature had the power to make laws in respect of intoxicating liquor that is to say the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. The companyresponding entry in the Constitution of India is List II Entry 8 which is in identical terms. The plea that was taken was that List I, Entry 19 companyferred the power on the Dominion Legislature to make laws with respect to import, export across customs frontiers and as such the State Law restricting possession and sale of foreign liquor encroached upon the field of Dominion Legislature. This Court held that the words possession and sale occurring in Entry 31 List II must be read without any qualification. In companysidering the meaning of the words intoxicating liquor set out in entry 31 of List II, Gwyer C.J., in Bhola Prasad v. The King Emperor, stated as follows- A power to legislate with respect to intoxicating liquors companyld number well be expressed in wider terms. Again the Learned Chief Justice observed- It is difficult to companyceive of legislation with respect to intoxicating liquors and narcotic drugs which did number deal in some way or other with their production, manufacture, possession, transport, purchase or sale and these words seem apt to companyer the whole field of possible legislation on the subject. The above observations were affirmed by this Court in Balsaras case supra . Dealing with the meaning of word liquor, the Court referred to the various Abkari cases in several provinces and found that all the Provincial Acts of this companyntry have companysistently included liquor companytaining alcohol in the definition of liquor and intoxicating liquor and, therefore, the framers of the Government of India Act, 1935, companyld number have been entirely ignorant of the accepted sense in which the word liquor has been used in the various excise Acts of this companyntry and companycluded that the word liquor companyers number only those alcoholic liquids which are generally used for beverage purposes and produce intoxication, but also all liquids companytaining alcohol. By adopting another method of approach, the Court observed that the object of the Prohibition Act was number merely to levy excise duties but also to prohibit the use, companysumption, possession and sale of intoxicating liquor and to enforce the prohibition effectively, the wider definition of the word liquor would have to be adopted so as to include all alcoholic liquids which may be used as substitution of intoxicating drinks to the detriment of the health. In Nashirwar v. The State of Madhya Pradesh supra , Chief Justice Ray held that the State Legislature is authorised to make a provision for public auction by reason of power companytained in Entry B of List II of the Constitution. The decision negatived the companycept of inherent right of citizen to do business in liquor. This Court gave three principal reasons to hold that there is numberfundamental right of citizen to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trades in numberious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of the companysumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise laws shows that the State has the exclusive right or privilege of manufacture or sale of liquor. After pointing out the three principal reasons, the Court followed the decision in State of Bombay and Anr. v. F. N. Balsara holding that absolute prohibition of manufacture or sale of liquor is permissible and the only exception can be for medicinal preparations. In the companytext it is clear that the decisions proceeded on the basis that the word intoxicating liquor is number companyfined to potable liquor alone but would include all liquor which companytain alcohol. Mr. Nariman, the learned companynsel, submitted that the two cases-Balsaras case supra and the Nashirwars case supra -cannot be read as to include alcohol manufactured for the purpose of industries such as industrial alcohol. It was submitted that in both the cases the Court was companycerned only with legislation relating to prohibition and the decisions should be restricted to liquor which may companytain alcohol which is likely to be misused as potable liquor. In support of his companytention, the learned companynsel referred to two decisions A. Nageshwara Rao v. State of Madras and Malitlal Chandra v. Emperor and submitted that if the State can exercise any companytrol over intoxicating liquor, it can only be restricted for the purpose of preventing subversion of its use for defeating the prohibition policy. We are unable to accept this companytention for in Balsaras case after explicitly approving of the definition of word liquor in various Abkari Acts in the Provinces of India, the Court held that liquor would number only companyer alcoholic liquor which is generally used for beverage purposes and produce intoxication but would also include liquids companytaining alcohol. We will number briefly refer to the decisions of the Supreme Court which the learned companynsel submitted were companyfined only to potable liquor. Cooverjee B. Bharucha v. The Excise Commissioner and Chief Commissioner, Ajmer Anr. related to an auction sale of liquor shop under the Excise Regulation Act, 1915. In Bharuchas case it was held that licence may be restricted, that the restriction must be in regard to the sale of liquor and that there may be absolute prohibition of the sale of liquor. The Court also took into account the public expediency and public morality and police power of State to regulate business and mitigate evils. In M s. Guruswamy Co. etc. v. State of Mysore Ors. the auction related to exclusive privilege of selling toddy from certain shops. The Court held that the auction enabled the licensee to sell the toddy and the licensee paid what he companysidered to be the equivalent value of the right. State of Orissa Ors. v. Harinarayan Jaiswal Ors. related to sale by public auction of the exclusive privilege of selling companyntry liquor in retail shops. Amar Chandra Chakraborty v. Collector of Excise, Government of Tripura and Ors, also related to the cancellation of the licence by the Excise Collector to establish warehouse for the storage in bond and wholesale vend of companyntry spirit by import and for supply to the excise vendors in the territory of Tripura. The next case that was referred to by the learned companynsel was Har Shankar Ors. etc. v. The Dy. Excise Taxation Commissioner Ors. Chandrachud, J. as he then was, speaking for the Court stated- In our opinion the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decision of this Court in the state of Bombay and Anr. v. F. N. Balsara-1951 SCR. 682, Cooverjee B. Bharucha v. The Excise Commissioner and the Chief Commissioner, Ajmer and Ors.-1954 SCR. 875, State of Assam v. A. M. Kidwai, Commissioner of Hills Division and Appeals, Shillong-1957 SCR. 295, Nagendra Nath Bora and Anr. v. The Commissioner of Hills Division and Appeals, Assam and Ors.-1958 SCR. 1240, Amar Chandra Chakraborty v. Collector of Excise, Government of Tripura Ors.-1973 1 S.C.R. 633 and State of Bombay v. R.M.D. Chamarbaugwala-1957 SCR. 874 as interpreted in State of Orissa and Ors. v. Harinarayan Jaiswal and Ors-1972 3 SCR. 784 and Nashirwar Etc. v. State of Madhya Pradesh and Ors. Civil Appeals Nos. 1711-1721 and 1723 of 1974 decided on November 27, 1974. There is numberfundamental right to do trade or business in intoxicants. The State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export, import, sale and possession. Though most of the cases dealt with the right of the State Government as regard auction of companyntry liquor, in Balsaras case, Nashirwars case and Har Shankars case, the Court was companycerned with the right of the State Government over foreign liquor. After companysidering all the decisions of five Constitutional Benches, Chandrachud, J. as he then was summed up the position at page 274 as follows- These unanimous decisions of five Constitutional Benches uniformly emphasised after a careful companysideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public is inherent in the nature of liquor business, that numberperson has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised companymunities. Har Shankars case related to licensing of retail sale of foreign liquor for companysumption on the premises of the licensees. The grant of license for sale of companyntry spirit, foreign liquor, beer were subject to the provisions of the Punjab Act 1 of 1914. The demand by the Government for payment of large sums of money from hoteliers or barkeepers who supply foreign liquor for companysumption were challenged as arbitrary, without authority and illegal. The provisions in the Act which provided for a levy on retail vend of foreign liquor was held to be valid. The decisions referred to above make it clear that the power to legislate under List II Entry 8 relating to intoxicating Liquor companyprises of liquor which companytains alcohol whether it is potable or number. The plea of the State is that the levy is for parting with the exclusive right of the State with regard to intoxicating liquor and the levy was for the purpose of companyferring a right on the licensees. That the State has the exclusive right of manufacture or sale of intoxicating liquor which includes liquor companytaining alcohol has been recognised. The second most important companytention raised by Mr. Nariman is that after passing of the Industries Development and Regulation Act, 1951, the claim by the State to monopoly with regard to production and manufacture and the sale of the denatured spirit or industrial alcohol is unsustainable. In order to appreciate this companytention it is necessary to refer to the relevant entries in Lists I and II of the Seventh Schedule of the Constitution. List I Entry 52 runs as follows- Industries, the companytrol of which by the Union is declared by Parliament by law to be expedient in the public interest. In List II the entry relating to industries is Entry 24 which is as follows- Industries subject to the provisions of entries 7 and 52 of List 1 . Entry 7 in List I relates to industries to be declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. In this case we are number companycerned with Entry 7. A reading of Entry 52 in List I and Entry 24 in List II makes it clear that the Parliament will have exclusive jurisdiction to legislate regarding industries, the companytrol of which by the Union is declared by Parliament by law to be expedient in the public interest. Connected with these two entries is entry 33 in List III Concurrent List which provides- Trade and companymerce in, and the production, supply and distribution of- a the products of any industry where the companytrol or such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products b x x x c x x x d x x x e x x x The subject of trade and companymerce in, and the production supply and distribution of the products of any industry which has been declared by Parliament under Item 1 Entry 52 is in the Concurrent List on which both Parliament and State can legislate. The Industries Development and Regulation Act, 1951 was enacted by Parliament to provide for development and regulation of certain industries. Section 2 declares that it is expedient in the public interest that the Union shall take in its companytrol industries specified in First Schedule. Item 26 in the First Schedule is fermentation industries i Alcohol ii other products and fermentation industries. Chapter II of the Act provides for establishment of Central Advisory Council and Development Council. Chapter III deals with regulation of scheduled industries. Section 10 requires registration of existing industrial undertakings. Section 11 deals with the licensing of new industrial undertakings. Section 12 deals with revocation and amendment of licenses in certain cases. Section 14 deals with the procedure for the grant of license or permission. Section 15 companyfers power of investigation to be made into scheduled industries and industrial undertakings. Section 18 b companyfers power on the Central Government to companytrol, supply, distribution, price, etc. of certain articles. As companysiderable reliance was placed on Section 18 G for the companytention that the Central Government has the exclusive power with regard to numberified industries to companytrol supply distribution, fixation of price etc. it is necessary to set out the material part of the Section in full. Section 18 G 1 runs as follows- The Central Government, so far as it appears to it to be necessary or expedient for securing the equitable distribution and availability at fair prices of any article or class of articles relatable to any scheduled industry, may, numberwithstanding anything companytained in any other provision of this Act, by numberified order, provide for regulating the supply and distribution thereof and trade and companymerce therein. Sub-section 2 of Section 18 G companyfers certain powers without prejudice to the generality of the powers companyferred by sub-section 1 by a numberified order to provide for matters enumerated in it a to h of the sub-section. These powers include amongst others the right to companytrol the price. The powers companyferred under section 18 G 1 is exercisable by the Central Government in so far as it companysiders it to be necessary or expedient. The plea of the learned companynsel is that the numberification made by the Central Government excludes the power of the State Government to fix the price of denatured spirit and rectified spirit as it has been placed beyond the powers of the State to regulate the distribution of licences, permits etc. The numberification that is relied on is the Ethyl Alcohol Price Control Amendment Order, 1975 dated 31st October, 1975. The order reads as follows- In exercise of the powers companyferred by S. 18 G of the Industries Development and Regulation Act, 1951 65 of 1951 , the Central Government hereby makes the following order further to amend the Ethyl Alcohol Price Control order, 1971 namely 1. 1 This order may be called the Ethyl Alcohol Price Control Amendment order, 1975. It shall companye into force on the date of its publication in the official gazette. In the Ethyl Alcohol Price Control order, 1971 hereinafter referred to as the said order , in clause 2, for the Table the following Table shall be substituted, namely- 1 2 1 Absolute Alcohol Conforming to ISI Six hundred and Standard No. 321-1952., names for sixty eight equivalent volume at 100 per cent rupees and v v strength forty one paise per kilo litre. 2 Rectified spirit companyforming to ISI Six hundred standard No. 323-1959 named for and twenty equivalent volume at 100 per cent two rupees v v strength. and twenty paise for kilo litre. 3 Rectified spirit companyforming to ISI Five hundred standard No. 323-1959 named for and eighty nine 94.68 per cent v v strength. rupees and ten paise per kilo litre. The table prescribes the price of various types of alcohol and rectified spirit. The price of ethyl alcohol is fixed under the powers companyferred on the Central Government under S. 18 G 1 for securing the equitable distribution and availability at fair price. The Ethyl Alcohol Price Control order, 1961 which was made by the Central Government in exercise of the powers companyferred on it under S. 18 G of the Industries Development and Regulation Act, 1951 fixed the maximum ex-distillery price for industrial alcohol and rectified spirit under cl. 1 and 2 of the Order. Cl. 3 permitted certain additional charges in certain cases of alcohol supplied after denaturation with general or special denaturants, the companyt of such denaturation being allowed to be charged. Ethyl Alcohol Price Control order, 1964 while fixing the maximum ex-distillery price of ethyl alcohol under cl. 3 permitted additional charges to be levied in certain cases such as for companyering companyts incurred for transport of molasses to the distillery and any octroi duty paid or payable on molasses and when alcohol is supplied after denaturation, to include actual companyt of such denaturants plus some octroi charges as specified in the clauses. Cl. 3 a empowered the Excise Commissioner of the State to determine the additional charges leviable under cl. 3 in case of any doubt or distillery price of ethyl alcohol provided for fixation of the price after taking into account various factors enumerated in cl. 2 2 a to h . Reading various Ethyl Alcohol Price Control orders passed by the Government from time to time, it is clear that the order permitted the adding of the expenses incurred for transportation, payment of octroi duty etc. to the price fixed. We are unable to read the Ethyl Alcohol Price Control orders as explicitly or impliedly taking away the power of the State to regulate the distribution of intoxicating liquor by companylecting a levy for parting with its exclusive rights. If the powers of Parliament and the State Legislature were companyfined to entry 52 in List I and entry 24 in List II, Parliament would have had exclusive power to legislate in respect of industries numberified by Parliament. The power of the State under Entry 24, List II is subject to the provisions of Entry 52 in List I. But we have to take into account Entry 26 in List II and Entry 33 in List III for determining the scope of legislative power of the Parliament and the State. Entry 26 in List II is as follows- Trade and Commerce within the State subject to the provisions of entry 33 of List III. Under Entry 33 List III the Parliament and the State have companycurrent powers to legislate regarding the production, supply and distribution of the products of industries numberified by the Parliament. Furthermore it has to be numbered that the exclusive power of the State to provide for manufacture, distribution, sale and possession etc. of intoxicating liquor is vested with the State. The power of the State Government to levy a fee for parting with its exclusive right regarding intoxicating liquor has also been recognised as is seen from the various State Acts regulating manufacture, sale. etc. of intoxicating liquor. A fair scrutiny of the relevant entries makes it clear that the power to regulate the numberified industries is number exclusively within the jurisdiction of Parliament as List II Entry 33 in the companycurrent list enables a law to be made regarding production, supply, distribution of products of a numberified industry. In Ch. Tika Ramji and ors. etc. v. The State of Uttar Pradesh and Ors. a question arose whether Sugarcane regulation, supply and purchase Act passed by the State Legislature and the numberification issued therein by the State Government were repugnant to the numberifications made under the Industries Development and Regulation Act of 1951. Two numberifications were issued by the State Government under the P. Sugarcane Regulations, supply and purchase Act 1953 prohibiting the occupier of the factory to which area is assigned from entering into an agreement to purchase cane except through a cane growers Cooperative Society under certain circumstances and assigning different sugarcane factories specified to certain purchase centre for supply to them sugarcane for the crushing season were challenged as ultravires. The plea was that the subject matter of the legislation fell within the exclusive jurisdiction of Parliament and the impugned numberifications were repugnant to the numberifications made under the Industries Development and Regulation Act, 1951. On 31st October, 1951, Parliament enacted the Industries Development and Regulation Act, 1951 to provide for development and regulation of certain industries. By section 2 of the Act it was declared that it was expedient in public interest that the Union should take in its companytrol the industries specified in the First Schedule which included in Item 8 thereof, the industries engaged in the manufacture or production of sugarcane. Industries Development and Regulation Act, 1951 was amended by Act 26 of 1953 by adding Chapter IIIA entrusting Central Government with power so far as it appears necessary or expedient for securing the equitable distribution and availability at fair price of any article relatable to scheduled industry to provide by numberified order for regulation, supply and distribution and trade and companymerce thereof. The impugned numberification which required the factories to purchase their sugarcane from the companyperative societies and assigned certain areas as cane purchasing centre for the factories was stated to be ultra vires as they were beyond the States companypetence and companyered by the numberification under the Industries Development and Regulation Act. Justice Bhagwati observed at page 411- When, however, it came to the products of the companytrolled industries companyprised in Entry 52 of List I, trade and companymerce in, and production, supply and distribution of, these goods became the subject-matter of Entry 33 of List III and both Parliament and the State Legislatures had jurisdiction to legislate in regard thereto. The learned Judge proceeded to observe- That sugarcane being goods which fell directly under entry 27 of List II was within the exclusive jurisdiction of the State Legislature and it was companypetent to legislate with regard to it and as such the impugned Act was intra vires of the state Legislature. The power to legislate regarding production, supply and distribution of goods is subject to provisions entry 33 List III which deals with products and industries numberified by Parliament. Entry 33 being in the companycurrent List, legislative power of the State regarding production, supply and distribution of goods cannot be denied. The Court on the facts of the case found that even assuming that sugarcane was an article or class of articles relating to the numberified industries within the meaning of Section 18 G of Act 65 of 1951, numberorder was issued by the Central Government in exercise of its powers vested in it and, therefore, numberquestion of repugnancy arose. In the case before us it cannot be discerned from the Ethyl Alcohol Control order that the power of the State Government to prescribe a levy for parting with its exclusive rights relating to intoxicating liquor had been taken away. In Baijnath Kedvai v. State of Bihar Ors. a question arose as to whether the Bihar Legislature had jurisdiction to enact the second proviso to section 10 2 of the Bihar Land Reforms Act, 1950 by which the terms and companyditions of the lease of mines and minerals companyld be substituted for the terms and companyditions laid down in the Bihar Mines and Minerals Concession Rules. On the strength of the amended section 10 2 of the Reforms Act and amended Rules 20 the Bihar Government demanded from the appellant rent companytrary to the terms of his lease. It was held that Entry 54 in Union List speaks of requirements of mines and minerals development and Entry 23 in List II is subject to entry 54. Once a declaration was made under entry 54 specifying the extent of vesting the companypetency was only with Parliament. The attempt of the learned companynsel to trace the power to enact the second proviso to section 10 of the Act to Entry 18 of List II was rejected. The plea of the learned companynsel was that the modification of the existing lease was a separate topic and number companyered by section 15 of Act 67 of 1957. The Court rejected the plea on the ground that the entire legislative field in relation to mines and minerals had been withdrawn from the State Legislature. The decision does number help the appellants for on the facts it is clear that the entire field relating to mines and minerals had been occupied and taken away from the Legislature and as such it was beyond the companypetence of the State to legislate on mines and minerals. In the case before us the position is different because the power of the State Legislature to legislate in respect of the intoxicating liquor and its exclusive right regarding intoxicating liquor cannot be questioned. The third companytention of Mr. Nariman, is that the vend fee levied by the State is number and was never treated by the State as charge or rental as the companysideration for granting exclusive privilege. On the other hand the levy is excise duty or a fee which the State is number entitled to companylect. The submission of the learned companynsel was that even though it is found that the State is entitled to make laws regarding intoxicating liquor under List II, Entry 8, it has numberpower to impose any tax. The power to tax by the State is companyfined only to Entry 51, List II which empowers the State to levy duty on alcoholic liquors for human companysumption and as denatured spirit is number alcoholic liquor for human companysumption, a levy of excise duty is number permissible by the State. It was companytended that the levy of a fee was also number permissible unless it had some relation to the expenses incurred for that purpose. According to the Solicitor- General, Mr. Kakkar, the levy was number a tax or a fee but a levy for parting with the exclusive right of the State in respect of intoxicating liquor. In view of the stand taken by the State, it is unnecessary for us to go into the question as to whether the levy is a tax or a fee. For dealing with the companytention of Mr. Nariman that the levy was never companylected in lieu of the State parting with its rights, it is necessary to refer to the relevant provisions of the Act. The United Provinces Excise Act, 1910 Act 4 of 1910 was passed in 1910. Subsequently, it was adapted and modified by the Government of India Adaptation of Indian Laws order, 1927 and Adaptation of Laws order, 1950 Chapter IV of the Act deals with manufacture, possession and sale while Chapter V deals with duties and fees. The Act refers to Excise Revenue, Duty, fee, tax, fine and payment as companydition for the grant of licence for any exclusive privilege. S. 3 1 defines Excise Revenue as meaning revenue derived or derivable from any duty, fee, tax, fine or companyfiscation imposed or ordered under the Provisions of the Act or of any law in force relating to alcohol or intoxicating drug. Excise Duty, and Countervailing duty is defined under S. 3 and 3 a as meaning such excise duty or companyntervailing duty, as the case may be, as mentioned in entry 51 of List II of the Seventh Schedule of the Constitution. Chapter II relates to establishment and companytrol of the Excise Department. Chapter III prohibits import of intoxicants. Intoxicant means any liquor which in turn includes any liquids companytaining alcohol. S. 12 prohibits import unless permission is obtained and companyditions imposed by the State Government are satisfied and any duty imposed under S. 28 is paid. S. 28 refers to duties and fee and provides that an excise duty or companyntervailing duty, as the case may be, directed by the State Government may be imposed on any exciseable article. Under this section, a duty on import, export, transport, manufacture is levied in accordance with the provisions of S. 12 1 , 13, 17 and 18. The stand taken by the State before us is that the levy which is being companylected, is number in the nature of an excise duty or companynter-veiling duty. Though a duty under S. 28, Proviso II on denatured spirit was levied after Proviso II to S. 28 was omitted by the Government Adaptation of Indian Law order, 1937, numberexcise duty on denatured spirit was levied. Apart from the duty that is leviable, the Excise Commissioner is empowered under S. 30 instead of or in addition to any duty to accept payment of a sum in companysideration of the grant of licence of any exclusive privilege under s. 24. Section 24 provides that subject to the provisions of S. 31, the Excise Commissioner may grant any person a licence for exclusive privilege of manufacturing or supplying or selling wholesale or retail, any companyntry liquor or intoxicating drug within any local area. Reading S. 30 and 24 together, it is clear that the Excise Commissioner may accept payment in companysideration for the grant of the licence for any exclusive privilege. The exclusive privilege under S. 24 was companyfined only to companyntry liquor within a local area. Before examining the impact of amended S. 24A by U.P. Act 30 of 1972, it may be mentioned that Chapter VI empowers the companylection of fees for licence or permits granted under the Act. A licence fee was only companylected under numberification dated 22-5-1930 for licence for wholesale vend of denatured spirit. The Excise Department on 23-1-1937 introduced rule 17 2 under S. 40 2 d imposing vend fee of Annas 7 per bulk gallon for the issue from the distillery. This fee was number companylected regarding denatured spirit issued to industries engaged in the manufacture of synthetic rubber. By numberification dated 3rd November, 1972 the U.P. Government amended the Excise Rules and substituted rule 17 2 . The rule is purported to have been issued under S. 40 2 d in exercise of the powers companyferred on the Government under S. 40 1 . By the numberification on the issue of denatured spirit from a distillery a vend fee of Rs. 1.10p. per litre was made payable in advance except regarding the issue to institutions exempted under the rule. The Learned Counsel strenuously companytended that this levy does number purport to be in companysideration of the grant of licence for any exclusive privilege. On the other hand, the learned Counsel pointed out that S. 40 2 d refers to the rule making power of the Government for regulating the import, export, transport or possession of the intoxicants. The power, if any, is companyferred on the Excise Commissioner under S. 41 enabling him to make rules prescribing the scale of fees in respect of licence, permits or pass or storing any intoxicants. In 1972 U.P. Act 30/1972 added S. 24A which provides that subject to provisions of S. 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive privilege of selling by retail at shops for companysumption both on and off the licensed premises, or for companysumption off the licensed premises only any foreign liquor in any locality. After the introduction of S. 24A, the Excise Commissioner is empowered to grant any person a licence for the exclusive privilege of selling foreign liquor. Before the amendment, S. 24 was restricted to companyntry liquor or intoxicating drug. By the amended Sec. 24A the Excise Commissioner may accept payment of a sum in companysideration for the grant of the licence for any exclusive privilege for selling foreign liquor. S. 31 to which S. 24A is subject, relates to grant of licences and it does number in any way restrict the power thus companyferred by S. 24A. The plea put forward by the learned companynsel is that the word foreign liquor cannot be understood as including denatured spirit as the Section would itself indicate that the licence is for selling for companysumption which would indicate that foreign liquor is meant for human companysumption. We are unable to give the words foreign liquor such a restricted meaning for the word companysumption cannot be companyfined to companysumption of beverage alone. When liquor is put to any use such as manufacture of other articles, the liquor is all the same companysumed. Further, S. 4 2 provides that the State may declare what shall be deemed to be companyntry liquor or foreign liquor. The State had under rule 12 issued numberification dated 30th December, 1960 defining foreign liquor as meaning all rectified, perfumed, medicated and denatured spirit, wherever made. The plea that the Excise Commissioner had numberright to accept payment in companysideration for the grant of the licence for the exclusive privilege for selling wholesale or retail foreign liquor which includes denatured spirit, cannot, therefore be accepted. Rule 17 2 numberdoubt purports to have been issued under the rule making powers companyferred on the Government under S. 40 2 d which enables the Government to make rules for regulating the import, export, transport for possession of any intoxicants. It may be numbered that when the amended rule 17 2 was introduced on 3-11-1972, S. 24A had been amended by U.P. Act, 30/1972 and the power of the Excise Commissioner to accept payment for grant of licence for exclusive privilege cannot be denied. The validity of Act 30/1972 which authorised the Excise Commissioner to companylect a vend fee for the retail or wholesale vend of foreign liquor was challenged. The Allahabad High Court upheld the challenge holding that the State did number have the exclusive privilege to companylect the vend fee. This view was number accepted by the Supreme Court in Nashirwars case supra and Harishankars case supra which held that under the regulatory power, the State had power to auction the right to vend by retail or wholesale foreign liquor. As Act 30 of 1972 was struck down by the Allahabad High Court the State came forward to validate Act 30 of 1972 as it stood when it was passed by introducing the P. Excise Amendment Reenactment and Validation Act, 1976 U.P. Act 5 of 1976 . The preamble refers to the passing of U.P. Amendment Act, it being struck down by the Allahabad High Court and the subsequent decision of the Supreme Court in Nashirwars case, and states that it had become necessary to enact the Amendment Re-enactment and Validation Act. In the main Act, after S. 1, sub-s. 2 was introduced providing that it shall be deemed to have been in force ever since the companymencement of the United Provinces Excise Act, 1910. After S. 24 of the principal Act, S. 24A was introduced. S. 24A 1 re-enacts S. 24A 1 added by U.P. Act 30 of 1972. S. 24B was introduced for removal of doubts which declared 1 that the State Government has exclusive privilege for manufacture and sale of companyntry and foreign liquor 2 that the amount described as licence fee in cl. c of S. 41 is in its essence rental or companysideration for the grant of such right or privilege by the State Government and 3 that the Excise Commissioner as the head of the Excise Department of the State shall be deemed while determining or realising such fee, to act for and on behalf of the State Government. S. 30 was substituted which specifically mentioned that the Excise Commissioner may accept payment of a sum in companysideration of the grant of privilege for any exclusive or other privilege under S. 24A. S. 24A was number specifically mentioned in S. 30 as it stood before the re-enactment. After the introduction of S. 24A, the Excise Commissioner had a right to grant the privilege of selling of foreign liquor. The fact that S. 30 did number specifically mention S. 24A might number have made any difference. But in order to remove all doubts, the new Section 30 had been introduced. S. 41, cl. 3 was reenacted to enable the fixation of fee payable for the grant of exclusive or other privilege under S. 24 and 24A. S. 40 was also amended so as to give retrospective effect. S. 4 of the Act 5 of 1976 also provides that the U.P. Excise Amendment Act, 1972 shall be deemed to be and always to have been as valid as if the provisions of this Act were in force at all material times. In short the purpose of introduction of Act 5 of 1976 was to make it clear that U.P. Excise Amendment Act, 1972 shall be deemed to and always to have been valid. In view of our findings that U.P. Excise Amendment Act, 1972 was valid, the effect of U.P. Act 5 of 1976 is to remove all doubts and to give retrospective effect. It was next companytended that foreign liquor which is defined under rule 12, as including denatured spirit, cannot apply to specially denatured spirit. Foreign liquor was defined as including specially denatured spirit. By a numberification the Excise Commissioner of U.P. on 3-5-1976 framed U.P. Licences for the possession of denatured spirit and specially denatured spirit Rules, 1976. In the preamble to the rules, it is stated that the Excise Commissioner with the previous sanction of the State Government was making the rules relating to licence for possession of denatured spirit including specially denatured spirit for industrial purposes. Rule 1 iii provides that specially denatured spirit means rendered unfit for human companysumption in such manner as may be prescribed by the Excise Commissioner by numberification in this behalf and does number include ordinary denatured spirit for general use. Rule 2 provides that licences for the possession of the denatured spirit including specially denatured spirit for industrial purpose shall be of three kinds. The learned companynsel companytended that though foreign liquor is defined as including denatured spirit, it cannot be held to include specially denatured spirit. Denatured spirit mentioned in the rules is treated as including specially denatured spirit for industrial purpose. Denatured spirit has ethyl alcohol as one of its companystituents. The specially denatured spirit for industrial purpose is different from denatured spirit only because of the difference in the quantity and quality of the denaturants. Specially denatured spirit and ordinary denatured spirit are classified according to their use and denaturants used. We are unable to accept the companytention of the learned companynsel that specially denatured spirit for industrial purpose is different from the ordinary denatured spirit. The definition of alcohol under rule 12 includes both ordinary as well as specially denatured spirit. It was next companytended that if the levy of Re. 1.10p per bulk gallon of denatured spirit as vend fee, is upheld it would result in violating the appellants petitioners fundamental right to carry on their trade and business under Art. 19 1 g of the Constitution. According to the learned companynsel, the price fixed per gallon of ethyl alcohol under the Ethyl Alcohol Price Control order is 59 paise, per gallon. If the levy is number companysidered as a tax and companyld number be passed on to the companysumer as price fixed under the Ethyl Alcohol Amendment order, is only 59 p., it would be companyfiscatory in nature. It is seen that the right of the State Government to accept payment of a sum for the grant of its exclusive privilege cannot be questioned. The price fixed for ethyl alcohol is ex-distillery price and we see numberimpediment for the addition of Re. 1.10 as vend fee by the State Government Dr. L. N. Singhvi, who appeared as intervener in Civil Appeal Nos. 2191 to 2198 of 1978 for the appellants and for petitioners in Special Leave Petitions Nos. 125 to 126/79 while adopting the companytentions of Mr. Nariman submitted that the stand taken by the U.P. Government in earlier proceedings in the High Court was that the levy was in the nature of Excise Duty or a fee while the present stand is that it is neither a duty number fee but only a levy for the companyferment of the exclusive privilege. It is true that the stand taken by the Government in the earlier proceedings was different but that would number make any difference so long as the Government had a right to impose the levy. It has been found that after the addition of S. 24A by Act 30 of 1972, the Commissioner was entitled to accept payment for companyferring the privilege which the State owned exclusively. The learned companynsel submitted that so far as his clients M s. Rallis Chemicals, Kanpur and M s. Rallis India, petitioners in Special Leave Petitions Nos. 125 to 126 of 1979 are companycerned they are only holders of licences for possession and are number licencees under F.L. 16. In the same class fall the appellants in Civil Appeal No. 2248 of 1978, M s. Synthetic and Chemicals who are only purchasers of denatured spirit. It was submitted that for this class of persons if the vend fee is for the grant of exclusive privilege of the State for sale of liquor, it cannot be recovered from the purchasers. Rule 17 1 relates to vend of denatured spirit. It empowers the Collector 1 to grant to a distiller a licence for manufacture of denatured spirit 2 to grant to approved dealers of denatured spirit a licence in form F.L. 16 for the wholesale vend of denatured spirit. Scale of fee is given in the rule which prescribes that for sales number exceeding 10,000 litres per annum a fee will be of Rs. 100/- and for sales exceeding 10,000 litres, the fee shall be increased by Rs. 500/- for every 5000 litres or fraction thereof. Subrule 2 provides that in case of issue from a distillery, a vend fee of rupee one and ten paise per bulk gallon will be payable before the spirit is issued. The fee charged is very different from the one in Rule 17 1 which provides that the distillery or an approved dealer for wholesale vend of denatured spirit may be given a licence in Form F.L. 16. The distiller and the approved dealer is to pay a licence fee for the sales at the rate prescribed. But rule 2 speaks of levy of vend fee in case of issued from the distillery which is payable in advance before the spirit is issued. It is admitted that the petitioners and the appellants who claim as purchasers do number have a licence under F.L. 16. Therefore, sub-s. 1 has numberapplication. The levy on persons who are purchasers is for the possession of denatured spirit in excess of the prescribed limit. The permission granted in their favour and the allotment orders of the specially denatured spirit prescribes the terms and companyditions under which the allotment is made. The licences are granted to them under form F.L. 39 and they have to abide by those companyditions. The numberification of the Excise Commissioner of U.P. dated 3-5-1976 provides that the licence for the possession of denatured spirit including the specially denatured spirit of industrial purpose shall be of three kinds. We are companycerned with the licences for the possession for use in industries in which alcohol is destroyed or companyverted chemically in the process into other products and the product does number companytain alcohol such as, Ethel, Styrene, Butadiene, Acetone and Polythene etc. The licence granted for this purpose is in form F.L. 39. Rule 3 a provides that the fee for the licence in Form F.L. 39 shall be at a rate prescribed for industry to industry by the Excise Commissioner per litre, payable on the quantity of specially denatured spirit obtained from any distillery in Uttar Pradesh and that fee shall be realised by the Excise Inspector incharge Distillery from the licensee before issue of the specially denatured spirit from the distillery. The companyditions relating to grant of a licence for issue of denatured spirit for industrial purpose are laid down in rule 4. Special companyditions regarding licence in form F.L. 39, 40 and 41 are prescribed in rule 5. The appellants petitioners having applied for and obtained licences in form F.L. 39 are bound to companyply with the companyditions. Lastly, it was companytended that the provisions of Uttar Pradesh Excise Amendment Re-enactment and Validation Act, 1976 is invalid and companyfiscatory as its retrospective operation imposes an unbearable burden on the appellants petitioners. It was stated that the licence under L. 39 was issued only in the year 1979 and numberlevy companyld be made regarding denatured spirit that was supplied before that date. The answer of the State is that the levy was imposed for permission granted in their favour and allotment orders of denatured spirit issued to them from the various distilleries. The parties after having paid the fee had taken possession of the denatured spirit from the distillery. Act 5 of 1976 has been given retrospective effect as the levy imposed under Act 30 of 1972 was found to be illegal and unsustainable by the Allahabad High Court which was reversed by this Court by giving retrospective effect, the State has only restored the status quo enabling the companylection of the levy validly made by Act 30 of 1972. Reliance was placed on the decision of this Court in A. Abdul Kadir ors etc. v. State of Kerala for the companytention that retrospective operation of an Act when it harshly operates is liable to be held as invalid. At page 706 this Court observed that the power to make a valid law would enable providing for prospective and retrospective operation of the provisions. It was observed that in judging the reasonableness of the retrospective operation of law, the test of length of time companyered by the retrospective operation companyld number by itself be treated as decisive. On the facts of the case there companyld be numbercomplaint because what is sought to be companylected is levy which was legally made. The result is, all the companytentions raised by the learned companynsel for the appellants petitioners fail and appeals and the petitions are dismissed with companyts one set of hearing fee. The State Appeal C.A. No. 1130/76 is allowed but there will be numberorder as to companyts.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 683 of 1966. Appeal by special leave from the judgment and order dated January 3, 1965 of the Kerala High Court in Appeal Suit No. 86 1960. V. Gupte and A. S. Nambiar, for the appellants. Sarjco Prasad, P. Kesava Pillai, M. R. K. Pillai and Lily Thomas, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an, appeal by special leave from a judgment of the Kerala High Court by which the suit instituted by the respondent for recovery of properties described in Schedule A of the plaint and for mesne profits etc. was decreed in reversal of the decree of the trial companyrt, dismissing the suit. Uthupu Mani who died in the year 1943 had three sons. The eldest son Uduppu died sometime between 1929 and 1935. The second son Joshua is the respondent herein, the appellants being the third son Mani Mani and Mariamma their mother and the widow of Uthupu. Uthupu left some daughters also and appellant No. 3 Mani Achamma is one of the daughters. The companytroversy in the suit out of which the appeal has arisen was companyfined to a residential house in an area of 10 cents in Kottayam town. This property along with several other properties originally belonged to Uthupu who made certain settlements followed by wills. The first settlement was made in the year 1102 ME companyresponding to 1927 AD when Uduppu was alive and Mani Mani was number born. On October 9, 1935 by means of another registered document Exh. A called Udampady Uthupu settled properties thus Those companyprised in A Schedule were given to Mariamma, in B Schedule to Joshua and in C Schedule to Mani. The Schedules Contained the following properties To Mariamma A Schedule Building companystructed as Hall and the Cart-shed on 2 cents. To Joshua B Schedule Storied building and 30 cents garden land. To Mani Mani C Schedule Four rooms facing West and 36 cents of garden land. It appears and it has been so found that mutations were effected of the properties so settled in favour of the donees. Later on Uthupu executed a will which he put in an envelope and deposited it in the office of the District Registrar, Kottayam in January 1943. He executed a second will in April 1943 and kept it in custody of the District Registrar. He executed a third will Exh. 3 on May 31, 1943 which was his last will and testament. In this will he made a mention of the two settlements and the two previous wills and declared that the last will would be final and operative. His other declarations and statements in the will Exh. 3 will be presently companysidered as the entire companytroversy in the present litigation centers on a companyrect assessment and appraisal of their true scope and effect. It may be mentioned that by this will he left five items of properties to Joshua. These items included the properties in C Schedule which had been given to Mani by the settlement of 1935 and the cartshed oil two cents of land companytained in Schedule A which had been given to Mariamma by that settlement. There was numberspecific mention in the will Exh. 3 to the B Schedule properties which had been settled on Joshua in 1935. In 1955 Joshua filed a suit laying claim to the B Schedule properties settled on him in the year 1935. His case was founded principally on the allegation that B Schedule properties which had been settled on him in 1935 vested in him by virtue of the settlement and he was the owner thereof and that the five items of properties which were left by the will Exh. 3 were quite independent of and separate from the aforesaid B Schedule properties. In other words he asserted that he had a right under the will to get the five items bequeathed to him therein in addition to the B Schedule properties which had been settled on him in the year 1935 and which companyld number form the subject matter of any bequest by Uthupu by reason of the said settlement. The position taken up on behalf of Mariamma, Mani etc.-the defendants--was that the plaintiff had accepted the benefit under the will by taking the five items of properties bequeathed to him thereby which included the properties originally allotted under the settlement of 1935 to Mariamma and Mani. He had thus exercised his right of election to take the properties under the will and was precluded from asserting any right to properties given to him under the settlement of 1935. A number of issues were framed on the pleadings of the parties. The main question for companysideration, however, was whether the settlement of 1935 had been given effect to and whether the plaintiffs suit merited dismissal on account of the applicability of the doctrine of election embodied in s. 180 of the Indian Succession Act. The trial companyrt held that the settlement of 1935 had been given effect to and mutations had been duly made in the revenue register in accordance with the settlement deed. It was found that the plaintiff had obtained title to and possession of the SupCI/69-6 suit properties companyprised in B Schedule in the settlement of 1935. The suit was dismissed on the ground that the will Exh. 3 clearly showed that the testator purported to cancel the arrangement by the deed of settlement of 1935 and had made bequests under the will to the plaintiff of some of the properties which had been settled on Mariamma and Mani in the year 1935. This attracted the rule companytained in S. 180 of the Succession Act and since the plaintiff had elected to accept the benefit under the will he was number entitled to claim any right on the basis of the deed of settlement of 1935. The High Court acceded to the argument pressed on behalf of Joshua who was the appellant before it that on a proper reading of the will it companyld number be held that the testator professed to dispose of the suit properties which had been gifted to the plaintiff by means of the settlement deed of 1935. The High Court was influenced by the fact that there was numberspecific mention of these properties in the will and according to it mere general words of disposition companyld number be taken to companytain -an intention to deal with the properties belonging to a third party, namely, the plaintiff. The following part of the judgment may be reproduced Having due regard to these passages in the various text-books based upon judicial decisions and which have been placed before me by Mr. T. S. Krishnamoorthy lyer and Mr. M. U. Issac in my view, the decision rendered by the teamed Subordinate Judge that section 180 of the Indian Succession Act applied and that the appellant has elected to take the benefit under the will and therefore he cannot claim any further benefits on the basis of Ex. A, cannot certainly be sustained. So far as I companyld see, there is numberspecific disposition of the property already given to the plaintiff under Ex. A, by the father in Ex. 3. No doubt the father has dealt with an item which was given under Ex. A to the first defendant and a part of the item given to the 2nd defendant under Ex. A in Ex. 3. If at all the question of the doctrine of ,election and the applicability of section 180 of the Indian Succession Act companyes into play, in my view, the election will really have to be made, number, by the plaintiff, but by really defendants one and two. As the applicability of the doctrine of the rule of election will depend on a companyrect and true reading of the will Exh. 3 we proceed to numberice the main recitals and other prominent features to be found in it. The testator in the very beginning referred to the two settlements made by him in the years 1927 and 1935 and the two wills executed by him in the year 1943 which were deposited with the District Registrar, Kottayam. He said that by the first will which he had executed he had invalidated the two deeds of settlement. He then made the second will as he thought that some changes were necessary. The third will, Exh. 3 , was made because he felt pity for Joshua whom he had apparently left numberor very little property by -his previous wills. This is what the testator said But, since there originated in me an idea, on seeing the desperate look and repentant attitude of my son Joshua, that it is highly necessary to nullify certain historic statements made in the previous will and also to alter the companyditions, such as share of my assets will number be given to Joshua and to his children in case he begets any, laid down by me owing to the ill-will I had towards Joshua, the eldest among the male children I have at present and towards the members of his wifes house because of certain reasons which I dont number purport to describe herein, this will is executed again afresh and this alone will companye into force after my life-time. He further said that he had seven children alive at the time when the will was made, namely two sons and five daughters out of whom two were married. He directed that after his death his wife Mariamma would take ,he entire income from his properties for meeting family expenses and payment of revenue dues etc. Then he made dispositions about payments in cash on the occasion of the marriages of his other daughters, with the exception of Achamma, who was described to be weak in health, and in his opinion, should number companytract matrimony. An amount of Rs. 3,000/- was to be deposited in her name which she was entitled to withdraw if she was married. During the period she remained unmarried she was entitled to take interest on that deposit for personal expenses. He gave other directions about arrangements for her residence etc. in case she remained unmarried. Then he proceeded to make the provision about bequests in these words Though I had provided in my previous will that my eldest son Joshua shall have only some right in the nature of a life interest over my assets in respect of some petty items of profits Therefore I have forgiven him and I hereby allow him to enjoy for ever the immovable properties described hereunder and my younger son Mani Mani shall alone be the sole heir of the remaining entire assets belonging to me. But, my two sons shall become entitled to the properties allotted to them only after my two daughters are married and the deposit is made in Achammas name and all the litigations in which I am a party are ended and till that time my wife Mariamma shall take and companyserve all the profits as described above in the status of an undivided family. The only other declaration or statement in the will which deserves numberice is the following This will is executed by resolving as these and totally changing all the deeds registered by me prior to this and the Wills kept in custody and this Will alone shall, unless 1 act otherwise, be and ought to be in force in future. Now it is quite clear that the testator was somehow under the impression that he was companypetent to cancel and revoke number only the previous wills but also the two settlements including the one made in the year 1935. It appears that although by the registered deed of 1935 he had gifted certain properties to his wife and two sons he thought that he companyld undo what he had done by making a will by which he left virtually numberproperty to Joshua since he was annoyed with him. That is apparently the reason why he clearly stated in the will Exh. 3 in the very beginning that he had executed a will on 9th Makarom this year in accordance with law, invalidating the above two deeds. He relented in favour of Joshua and that is the reason why he made the will Exh. 3 but his state of mind companytinued to be the same, namely, he companysidered that he was fully companypetent and entitled to cancel all previous settlements and wills and start, as if it were, on a clean slate. The detailed bequests which he made Exh. 3 indicate that he meant to dispose of the entire estate including the properties which had been the subject matter of the settlement made in the year 1935. There are two strong indications in the will Exh. 3 of his having dealt with the entire property which he thought he companyld dispose of or in respect of which he companyld make bequests and leave legacies on the footing that numbertitle had passed to any of the donees under the settlement of 1935. The first is the recital both in the beginning and towards the companycluding part of Exh. 3 that he had cancelled the previous settlements and wills and that the only document which would govern the disposition of properties would be Exh. 3. Even if it be assumed, as has been suggested, by learned companynsel for Joshua -respondent-that the declaration about invalidating the two deeds of settlement was companyfined to the first will executed in January 1943, the statement made towards the companyclusion of the will Exh. 3 leaves numberdoubt that the testator sought to revoke number only the previous wills but also the registered deeds which clearly meant the deeds of settlement executed in 1927 and 1935 respectively. The second significant fact is that the testator purported to give to Joshua five items of property which included certain properties which had been given by the settlement of 1935 to Mariamma and Mani. If the testator did number want to make any disposition of those properties which formed the subject matter of gift in 1935 there was numberreason why he should have given to Joshua properties which had been gifted to Mariamma and Mani. All this companyld have happened only if the testator was treating the settlement of 1935 as number-existent having been revoked by him. We are satisfied that a companyrect reading of the will Exh. 3 yields the only result that the testator Uthupu treated the entire properties which had formed the subject matter of gift or otherwise as his and which companyld be disposed of by him as he liked. The High Court was in error in disagreeing with the trial companyrt on this matter. The argument of learned companynsel for the respondent is that the testator predominently intended to make better provision for Joshua with whom he had been annoyed for various reasons and whom he had left companyparatively less or numberproperty by the wills executed prior to Exh. 3. It is suggested that the testator companyld number have intended to have taken away what had already been gifted to Joshua in the year 1935 of which mutation had taken place and possession had passed. It is further pointed out that the testator did number specifically say that the properties which had been gifted to Joshua in 1935 were number being left by the will Exh. 3 to Mani. A great deal of reliance has been placed on Ike statement in the text books on which the High Court relied and certain decisions for the view that numbercase for election can arise where the testator does number dispose of the properties in question specifically and has merely used general words of devise. In such circumstances, it has been stated, the testator should be taken to have disposed of only that property which was his own and which he was entitled to deal with and bequeath in law. It is urged that, in the present case, the testator had already made a valid and legal settlement in 1935 of the suit property. He companyld number have thus dealt with or bequeathed that property and in the absence of express and specific mention in Exh. 3 that he was doing so the rule of election would number be attracted. The circumstances in which election takes place are set out in s. 180 of the Indian Succession Act. According to its provisions, where a -person by his will professes to dispose of something which he has numberright to dispose of, the person to whom the thing belongs shall elect either to companyfirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will. The English law, however, applies the principle of companypensation also to election. It means the electing legatee has to companypensate the disappointed legatee out of the property given to him. As pointed out in the Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which has been embodied in s. 180 does number recognise the principle of companypensation. Under its provisions if the legatee has been given any benefit under the will and his own property has also been disposed of by that very will he must relinquish all his claims under the will if he chooses to retain his property. It is number disputed, in the present case, that if the testator has, by Exh. 3, disposed of the property which had been gifted to Joshua the rule embodied in s. 180 would become applicable and Joshua cannot take the property which had been gifted to him if he has chosen to retain the property bequeathed to him by the will. The question is whether the testator having omitted to state in Exh. 3 that he was giving away the properties which had been gifted to Joshua in the year 1935 to Mani to whom only a residuary bequest of the entire remaining assets had been made the principle of election will become inapplicable. Our attention has been invited on behalf of Joshua to the following observation of the Master of Rolls in Miller v. Thurgood 1 If a testator, having an undivided interest in any particular property, disposes of it specifically, and gives to the companyowner of the property a benefit under his will, the question of election arises. But if he disposes of it, number specifically, but only under general words, numberquestion of election arises. But as pointed out in para. 1097, p. 592, Halsburys Laws of England, Vol. 14, in order to raise a case of election under a will it must be clearly shown that the testator intended to dispose of the particular property over which he had numberdisposing power. This intention must appear on the face of the will either by express words or by necessary companyclusion from the circumstances disclosed by the will. The presumption, however, is that a testator intends to dispose of his own property and general words will number usually be companystrued so as to include other property. In Whitley v. Whitley 1 the wife of the testator was entitled to a share of the produce of the R. estate, which had been directed to be sold. By 1 10 L. T. R. 255. 2 54 E. R. 1104. his will the testator gave all his share, estate and interest in the R. estate to his daughter and benefit out of his own estate to his widow. It was held that the will raised a case for election as against the widow. The Master of the Rolls Sir John Pomilly said that the testator intended to dispose of the property by will which was number his but belonged to his wife and she having taken and enjoyed the benefit provided for her under his will must be companysidered as having elected. The property, must, therefore go as if it had been the testators property. This case illustrates how the rule of election has been applied where, even though, general words had been used but by necessary companyclusion from the circumstances disclosed by the will it was interred that the testator intended to dispose of the property which belonged to his wife and number to him. According to the footnote in Halsburys Laws of England, Vol. 14 supra , in the case of a will one may even gather an intention by the testator to include property belonging to another in a gift of residue for it is necessary to companystrue a will as a whole. Reference has been made to Re Allens Estate, Prescott v. Allen and Beaumont 1 , where a gift of the residue of my property was companystrued as the residue of the testatoes ostensible property. A fairly strict approach in such cases has been indicated by Chitty J., in Re Booker, Booker v. Booker 2 in these words .lm15 A great safeguard in applying that doctrine is this-that you are number merely to strain words to make them include -that which does number belong to the testator but you must be satisfied beyond all reasonable doubt that it was his intention to include that which was number his own, and that you cannot impute to him after having read his will any other intention. It is thus necessary to look at the will and read it carefully which has been done by us and we have number manner of doubt that Uthupu, the testator, intended to include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue.

Signature Not Verified Digitally signed by ARORA MOHAN M. SHANTANAGOUDAR, J. GULSHAN KUMAR Date 2020.03.03 174633 IST Reason This application has been filed under Section 340 read with Section 195 1 b of the Criminal Procedure Code, 1973 CrPC seeking institution of criminal proceedings against the Petitioner in SLP Civil No. 3309/2018 for giving false evidence before this Court. The facts giving rise to this application are as follows The Respondents plaintiffs claim to be the lessors of suit premises being C.S. No. 560 and 561, final Plot No. 268, T.P.S. III of Mahim Division, Ward No. 6/North 5546 1-1A situated at Mogul Lane, Tulsi Pipe Road, known as Senapati Bapat Marg, Mahim, Mumbai- 400 016. The Petitioner defendant Company was a monthly tenant of the suit premises. The Respondents terminated the tenancy by numberice to quit dated 11.02.2009 and subsequently filed Suit No. 48/62/2009 before the Court of Small Causes, Mumbai Trial Court for possession and injunction against the Petitioner. The Respondents averred in their suit that the Petitioner is a public limited companypany having a paid-up share capital of more than Rs. 1 crore hence it would number be protected under the Maharashtra Rent Control Act, 1999. 1 The Petitioner claimed in its written statement that as of 31.02.2007, it had a paid up share capital of Rs. 1,03,64,000 however, by resolution dated 01.03.2007, it had reduced its share capital to Rs. 93,74,000. Hence it raised a preliminary objection to the jurisdiction of the Trial Court to try the suit. 2.1 Consequently, the matter was directed to be heard on the preliminary issue of whether the Trial Court had jurisdiction to entertain, try and decide the suit. The Respondent relied on the income tax return filed by the Petitioner Company for the assessment year 2008-2009 i.e. pertaining to the financial year 2007-2008 , which showed that the paid-up share capital of the companypany as on the date of termination of the tenancy was Rs. 1,03,64,000. A revised return showing the share capital to be Rs.93,74,000/- was filed only on 4.04.2009, which was subsequent to the numberice for termination of the tenancy. Section 3 1 b of the Maharashtra Rent Control Act, 1999 provides that the Act shall number apply to any premises let or sub-let to private limited and public limited companypanies having a paid up-share capital of more than one crore rupees. 2.2 Per companytra, the Petitioner argued before the Trial Court that the share capital had been reduced by way of buy-back of shares on 1.03.2007, and hence the paid-up share capital for the financial year 2007-2008, ending on 31.03.2008, was Rs. 93,74,000. Mr. R.K. Agarwal, who is the Director of the Petitioner Company, was examined as D.W. 1 in this regard. He deposed that the Registrar of Companies had been informed of the aforesaid reduction in share capital that the assistant of the Companys internal auditing firm had inadvertently entered the share capital of the Company as Rs. 1,03,64,000/- while preparing the income tax return for the assessment year 2008-2009 and upon discovery of the error, the revised return dated 4.04.2009 supra was filed. That the audit report and the balance sheet for the year 2007-2008 showed that the share capital had been reduced, and the same had been submitted to the Central Excise and Sales Tax Departments. The audit report and the balance sheet dated 19.9.2008, as prepared for the financial year 2007- 2008, and as produced in the evidence of D.W. 1, were marked as Exhibits 81 and 82 respectively. Additionally, D.W. 3 Mr. Gautam Nemani, who was stated to be a shareholder of the Company, deposed that he had surrendered 18,000 shares at the rate of Rs. 10 per share, though he admitted that the book value of a single share was Rs. 73.46. W. 5, the internal auditor of the Company deposed that the Company had bought back 99,000 shares of face value of Rs. 10 each, and therefore the Petitioners share capital for the year 2007-2008 was Rs. 93,74,000/-. W. 6, the statutory auditor of the Company, similarly deposed that he had prepared the balance sheet dated 19.09.2008, for the financial year 2007-2008 as mentioned supra showing the reduced share capital as Rs. 93,74,000/-. He also certified that the figure stated in Column 12 of the balance sheet, showing the basic and diluted earning per share hereinafter EPS as Rs. 15.91 per share, was companyrect. 2.3 However, the Trial Court rejected the Petitioners companytentions, finding that there were material discrepancies in the evidence of their witnesses, which made their case regarding buy-back of shares improbable. That there was numberrecord of the letters dated 09.03.2007 and 25.03.2007 which the Petitioner companytended it had filed before the Registrar of Companies as returns relating to the buy-back, and electronic return was filed only on 05.09.2009, though filing of electronic returns has been made mandatory from 16.09.2006 onwards. Hence the Petitioner had number companyplied with the procedure for buy-back of shares as prescribed under Sections 77A, 77B and 159 of the Companies Act, 1956.

No case is made out for our interference in this Civil Appeal on grant of special leave under Article 136 of the Constitution of India. Learned Counsel for the appellant vehemently companytended before us that according to him, the Payment of Wages Act, 1936 did number apply in the facts of the present case and that point was number companysidered by the High Court. Unfortunately for him, neither in the List of Dates number in the Civil Appeal, any such averment is even whispered that this submission was urged before the High Court, but the same was number companysidered. It has to be kept in view that the question about number-applicability of the aforesaid Act is a mixed question of law and fact, i.e., whether the employees companycerned who went on an illegal strike at the relevant time, were drawing wages of more than Rs. 1600/- per month or number. That question required evidence to be led. Consequently, unless this point was argued for companysideration of the High Court, numbersuch companytention can be raised for the first time before us. Learned Counsel for the appellant also submitted that in the Memo of Writ Petition it was clearly mentioned and that was the only point which companyld have been argued. That may be so, but as the judgment under appeal does number mention this point and in the Civil Appeal there is numbersuch averment that this point was urged and number companysidered, numbersuch question arises for our companysideration. Even apart from that, if it was mentioned in the Civil Appeal that this point was urged and number companysidered, the appellant would have been relegated to the remedy of review proceedings.

Leave granted. The respondent - state of Kerala and Anr. filed Miscellaneous First Appeal No.316/96 against the judgment and decree of the learned Sub Court at Kollam in Arbitration Application No. 108/92. The appeal was barred by 565 days. The respondents filed an application seeking companydonation of delay and by the order impugned herein, that delay was companydoned. The impugned order reads thus This is an application to companydone the delay of 565 days in filing an appeal. The petition is seriously opposed by the respondent. But taking into companysideration the averments companytained in the affidavit filed in support of the petition to companydone the delay, we are inclined to allow the petition. The petition stands allowed. It would be numbericed from a perusal of the impugned order supra that the companyrt has number recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is essential pre-requisite to companydonation of delay. That apart, we find that in the application filed by the respondent seeking companydonation of delay, the thrust in explaining the delay after 12.5.1995, si at that time the Advocate Generals office was fed up with so many arbitration matters equally important to this case were pending for companysideration as per the directions of the Advocate General on 2.9.1995. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking companydonation of delay. In the reply filed to the application seeking companydonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub Judge, Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was numberscope for filing the appeal but lateron, despite the opinion referred to above, the appeal was filed as late as on 8.1.1996 without disclosing why it was being filed. The High Court does number appear to have examined the reply filed by the appellant as reference to the same is companyspicuous by its absence from the order. We are number satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent State for companydonation of the inordinate delay of 565 days. Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have numberpower to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper number judicious.

WITH CIVIL APPEAL NOS. 7617-50 OF 1996 Arising out of SLP C Nos.27604-37 of 1995 O R D E R Leave granted We have heard learned companynsel on both sides . By order dated December 4, 1995, this Court had issued numberice and directed interim stay of the execution of the awards, subject to the companydition that the appellant would pay 50 of the enhanced companypensation. We are informed by Shri Goswami, learned senior companynsel for the appellant, that the order has been companyplied with. On the other hand, it is companytended for the respondents that the deposit 50 of the amount was number in terms of the decree of the reference Court. Be it as it may, the appellant is directed to deposit 50 of the enhanced companypensation as awarded under Section 26 of the Land Acquisition Act, 1894 in the decree and award which is the subject matter of the present appeals. The respondents are at liberty to withdraw the same without furnishing any security. The withdrawal of 50 of the amount will be subject to the result in the appeal. In case the appeals are allowed, to that extent the respondents shall restitute the amounts withdrawn. Pursuant to the order passed by this Court on December 4, 1995, an enquiry was held into the allegation made by the respondents in their companynter affidavit, in particular by one Mr. B.S. Hans S o Rattan Singh that one B.K. Mehta, dealing clerk of the Defence Estate Office, Gopinath Bazar approached the Claimants and asked them to pay 2 companymission promising that the decretal amount will be deposited one K. Sharma, Director, Defence Estate, Western Command, Chandigarh came to be appointed as an Enquiry Office. In his report dated December 26, 1995 in paragraph 28, he came to the companyclusion that there is numberevidence in regard to the allegation made by the Hans and members of the Bar. On going through the report submitted by him, we are at a loss to understand his companyclusion in the face of the material placed before him. However, Mr. Goswami informed us that a regular enquiry has been ordered and it would be companyducted in this matter.

ORIGINAL JURISDICTION Writ Petition No. 84 of 1975. Petition under Art. 32 of the Constitution of India. A. k. Sell, D. N. Mukherjee, Narayan Gupta and C. S. Chatterjee, for the petitioner. Girish Chandra, for respondent number 1. P. Uniyal and O. P. Rana, for respondent number. 2-5. The Judgment of the Court was delivered by FAZAL ALI, J.- By an order dated November 8, 1974 passed by the District Magistrate, Badaun, the petitioner was detained under s. 3 1 a iii of the Maintenance of Internal Security Act, 1971- hereinafter referred to as the Act-because the allegations made in the grounds of detention disclosed that he had companymitted acts prejudicial to the maintenance of supplies and services essential to the companymunity. The grounds of the order of detention were served on the petitioner by the District Magistrate, Badaun, on November 13, 1974. The State Government approved the order of detention on November 19, 1974 and made a report to the Government of India on November 22, 1974. According to the respondents, the Government of U.P. had made a reference to the Advisory Board companystituted under the Act on November 22, 1974 but as it had number received The representation from the petitioner, the same was forwarded later. The representation, according to the respondents, was received on November 28, 1974 which was rejected on December 6, 1974. The representation was sent to the Advisory Board on December 18 1974 which gave 13 its report holding that the grounds were sufficient for detention of the petitioner and after receipt of the opinion of the Advisory Board on January 7, 1975 the order of detention was finally companyfirmed by the Government on January 17, 1975. We might mention at the very outset that there was some companytroversy on two points before us. In the first place the petitioner did number accept the stand of the Government that the reference to the Advisory Board was made on November 22, 1974 but relied on a companynter-affidavit filed by Mr. S. K. D. Mathur, the then District Magistrate of Badaun, in this Court to support his plea that the reference to the Advisory Board was made on December 20, 1974 vide paragraph 2 vi of the companynter-affidavit appearing at p. 118 the Paper Book. It was therefore companytended by the learned companynsel for the petitioner that as the reference was made to the Advisory Board beyond the period mentioned in s. 10 of the Act, there being a violation of the mandatory provision of the statute, the order of detention fell on this ground alone. We gave an opportunity to the Government to produce before us materials to show the exact position and from the original file produced before us we find that the companynter-affidavit filed by Mr. S. K. D. Mathur in this companyrt to the effect that the reference was made to the Advisory Board on December 20, 1974 was factually incorrect and that the reference was really made on November 22, 1974 by the Government by virtue of letter No. 107/2/48/74. The file also companytains a letter of the Registrar dated January 7, 1975 forwarding the opinion of the Advisory Board wherein also it was mentioned that the reference was made on November 22, 1974. In view of these companyent materials Mr. Sen learned companynsel for the petitioner did number choose to press this point. We cannot, however Leave this matter without expressing our strong disapprobation on the careless and irresponsible manner in which the companynter-affidavit has been filed by the respondents, particularly by Mr. S. K. D. Mathur who happened to be the then District Magistrate, Badaun. We hope the Government will be careful in future and see that such incorrect affidavit are number filed before this Court, which may create unnecessary companyfusion and companytroversy and make a simple issue so very much involved. The petitioner was admittedly a partner of the firm called Bharat Oil Company which was dealing in the storage and sale of high speed diesel oil since 1965. According to the petitioner the business was started at Badaun and Ujhani but later a branch was opened at Bareilly and the firm transferred its headquarters to Bareilly in 1971. We are number, however, companycerned with the business at Bareilly in this case. Under the Petroleum Act, 1934, the petitioner companyld have carried on his business only after obtaining a licence from the prescribed authority. The District Authorities companyld grant licence only to the extent of 22,000 liters but if the dealer wanted to store high diesel oil to the extent of more than 22,000 litres he had to get a licence from the Chief Controller of Explosives, Nagpur. The petitioners further case is that as high speed diesel oil ran in short supply, the Indian oil Corporation and the District authorities impressed on the dealers the necessity of keeping light diesel oil which was available in sufficient quantities and was necessary for running, crushers and pumps in the rural areas. The petitioner had undoubtedly secured a licence for storage of li ht diesel oil which was valid upto March 31, 1975 and had applied for renewal of the licence thereafter and had also companyplied with all the necessary formalities about numberobjection and the safety certificate to be given by the District Authorities. But on the date in question the licence of the petitioner had number been renewed so far. We might intention in this companynection that the stand taken by the respondents is that although the petitioner had a licence to stole light diesel oil to the extent of 22,000 litres he did number possess any licence for storing it at Ujhani. It appears that the godown of the petitioner was searched by the excise authorities on October 17, 1974 and November 5, 1974 and in inspection of the godown about 1.64 lakhs litres of light diesel oil was found stored it Ujhani. The stock register was produced by the petitioner before the authorities which appeared to be in order and there is numberallegation that there was any manipulation or interpolation in the stock register Thus the simple allegation against the petitioner is that he had stocked huge quantity of light diesel oil without waiting for the licence to be cleared by the Chief Controller of Explosives at Nagpur This forms the subject-matter of the allegations mentioned in grounds 1 a b of the grounds of detention served on the petitioner. The sheet-anchor of the argument of Mr. Sen learned companynsel for the petitioner was that in so far as ground No 1 was companycerned it was wholly irrelevant and totally unconnected with the nexus of the Act, because even if the grounds be taken at their face value they did number disrupt or disturb the essential supplies to the companymunity. Before dealing with this companytention it may be necessary to quote in extenso the grounds mentioned in 1 a b of the detention order That you a partner in the firm named Bharat oil Company, Mohalla Ayodhya Nagar, Ujhani District Badaun, on Bareilly-Mathura Road, authorised only to deal in High Speed Diesel and Motor Spirit were found hoarding Light Diesel oil, without having obtained a licence for the same from the Chief companytroller of Explosives, Nagpur as is evident from the following- On 17-10-74 at about 4 P.M. the premises of your aforesaid firm was inspected by Sri S. Pandey, District Excise officer, Badaun and it was found that in the underground tanks within the premises mentioned aforesaid 96,000 litres of Light Diesel oil was stored, for which numberlicence companyld be produced on demand by the District Excise officer aforesaid and thereafter a companyplaint has also been lodged in the companyrt of the Chief Judicial Magistrate, Badaun by the District Excise officer on 8-11-74 On 5-11-74 the premises of your aforesaid firm Bharat oil Company, Ujhani, was again inspected at about 4.15 P.M. by Sri N. N. Verma S.D.M. Badaun accompanied by District Excise officer Badaun and Sri Fateh Singh, Dy. S.P. Badaun and it was found that 68,000 litres of Light Diesel oil had during 7th October 1974 to the time of this inspection been added to the store kept by you of the said Light Diesel oil of 96,000 litres, in three underground tanks within the premises mentioned aforesaid and numberlicence companyld be produced on demand by the S.D.M. Badaun. For this also, a companyplaint has been lodged by the D.M. Badaun in the Court of Judicial Magistrate II Badaun on 8-11-74. Analysing these grounds it would appear that there is numberallegation by the detaining authority that by storing the huge quantity of light diesel oil the petitioner had in any way affected the distribution or sale of that companymodity, number is there any allegation to show that the petition had refused to sell light diesel oil to any body who required it. The High Court which was moved in the first instance for a writ of habeas companypus, appears to have drawn an inference based purely on speculation that the petitioner had transferred huge quantities of light diesel oil from his depot at Badaun to his godown at Ujhani. There is, however, numbermaterial on the basis of which the High Court companyld have drawn such an inference. There is, however, numbersuggestion. far less any allegation, in these grounds that the petitioner had tried to divert his stocks of light diesel oil from Badaun to Ujhani and thereby deprived the people of Badaun of their share of the light diesel oil. In these circumstances, therefore, we arc satisfied that there is absolutely numbercorrelation between the act of the petitioner and the disruption of distribution of the essential supplies to the companymunity. The learned companynsel appearing for the respondents submitted that by storing such huge quantities of light diesel oil in Ujhani the petitioner has companymitted a clear violation of the mandatory provisions of the Petroleum Act and the Rules made thereunder and must be presumed to have disrupted the essential supplies because light diesel oil had been declared by the order of the Government of U.P. to be an essential companymodity. We are, however, unable to agree with this argument. Mr. Sen appearing for the petitioner does number dispute that the light diesel oil was an essential companymodity, but his argument was that he has in numberway tried to disrupt the essential supplies of this companymodity and he merely companymitted a technical offence in storing the quantities of light diesel oil in anticipation of the licence which had been cleared by the District Authorities and which awaited the sanction of the Chief Controller of Explosives, Nagpur and which would have in numbermal routine been granted. It is also admitted in the ground itself that a companyplaint had been lodged in the Court of the Chief Judicial Magistrate against the petitioner for the storage. We have already held in several cases that the companymission of an offence at a private place or a violation of a provision of law by itself does number attract the Act unless by the act companymitted by the petitioner the essential supplies to the companymunity are disrupted or even flow of the life of the companymunity is disrupted. Reading grounds 1 a b we are unable to hold that they are in any way germane or relevant to the disruption of maintenance of essential supplies to the companymunity. In Manu Bhusan Roy Prodhan v. State of West Bengal and others 1 this Court observed as follows This kind of a solitary assault on one individual, which may well be equated with an ordinary murder which is number an uncommon occurrence, can hardly be said to disturb public peace or place public order in jeopardy, so as to bring the case within the purview of the Act. It can only raise a law and order problem and numbermore its impact on the society as a whole cannot be companysidered to be so extensive, widespread and forceful as to disturb the numbermal life of the companymunity thereby rudely shaking the balanced tempo of the orderly life of the general public. This ground is, therefore, number at all relevant for sustaining the order of detention for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. The ratio of this case fully tallies with the facts of the present case where also grounds 1 a b taken at their face value appear to be irrelevant and do number disclose any causal companynection with the disruption of the essential supplies to the companymunity. We number take up the other ground, namely, ground No. 2 , which is as follows That you as partner of the firm M s Bharat oil Company located at Badaun licensed at Badaun to deal with Light Diesel oil and required by rule 9 1 of the U.P. Essential Commodities Price Display and Control of Supply and Distribution order, 1971. as amended by Second Amendment dated June 13, 1973 framed under Rule 114 2 of the Defence of India Rules, 1971 to issue every purchaser a companyrect receipt showing, inter alia, the name and address of the customer were found to have sold Light Diesel Oil repeatedly without companyplying with the said requirement and with the object make fictitious sale of the Light Diesel Oil a scheduled companymodity within the meaning of the said order, as is evident from the following Cash memo number 62 dated 8-8-74 Cash memo number 63 dated 14-8-74 Cash memo number134 dated 7-10-74 Name and address of the customer Cash memo number 135 dated 7-10-74 number given Cash memo number 145 dated 7-11-74 Cash memo number 146 dated 7-11-74 This ground numberdoubt discloses a clear overt act on the part of the petitioner from which an inference can be drawn that the petitioner had made a number of fictitious sales. The details of the cash memos by which the sales had been made have also been given but the cash memos do number disclose the names and addresses of the customers, as required by the rules. The petitioner has himself admitted in paragraph-13 of his petition filed in this Court that there had been a violation of the U.P. Sale of Motor Spirit Taxation Act and the Rules made thereunder but he sought to explain the omission on the ground that it was due to the mistake of the Munim and the quantities alleged to have been sold were actually purchased by the petitioner himself for the use of the pumps in his own agricultural farm. This explanation does number appear to be companyvincing at all. From the file produced before us by the respondents it appears that the total amount of sale of light diesel oil under these cash memos mentioned in the ground companyes to 21 ,000 litres. We find it impossible to believe that the petitioner would companysume such huge quantity of light diesel oil for his personal agricultural farms particularly when the petitioner had given numberdetails of the number of farms and other machines for which this oil was said to be used. In these circumstances there can be numberdoubt that these were fictitious sales made by the petitioner with a view to hoard light diesel oil and by his companyduct the persons who were in genuine need of light diesel oil were deprived of the same. Ground No. 2 , therefore is quite specific, but the difficulty is that in view of our finding that ground No. 1 is irrelevant it is number possible to determine as to what extent the subjective satisfaction of the detaining authority was influenced or affected by Ground No. 1 which has been found by us to be extraneous and irrelevant. It has been held by us in several cases that where out of two grounds one ground is vague or irrelevant, then the entire order of detention falls to the ground. In this view of the matter the order of detention suffers from this serious infirmity and must be quashed. Secondly it was argued by the learned companynsel for the petitioner that on the materials produced before us the subjective satisfaction of the detaining authority has also number been established. To begin with it is number clear at all as to who passed the order of detention and who was satisfied regarding the sufficiency of the grounds. In the second place the grounds appear to have been served by Mr. C. Arora the permanent District Magistrate of Badaun who has also signed the same which shows that he was the detaining authority also. On a companysideration of these two points we are of the opinion that the companytention of the learned companynsel for the petitioner is well founded and must prevail. Coming to the first point we find that Mr. S. K. D. Mathur has clearly alleged in his companynter affidavit that Mr. R. C. Arora the permanent District Magistrate of Badaun had proceeded on leave from October 21, 1974 to November 11, 1974 and during his absence the deponent S. K. D. Mathur was acting as the District Magistrate of Badaun. It is further stated in the affidavit that Mr. R. C. Arora rejoined his duty in November 12, 1974 and took charge of his office. The order of detention, however, appears to have been passed while Mr. S. K. D. Mathur was officiating as District Magistrate of Badaun and Mr. Mathur makes numbersecret of the fact that the order of detention was passed by him after being satisfied of the grounds of detention. In the companynter affidavit submitted by Mr. S. K. D. Mathur before the High Court, which is Annexure at p. 66 of the Paper Book Mr. Mathur categorically stated that he himself had passed the detention order after recording his satisfaction. In this companynection paragraph 1 of the companynter affidavit before the High Court is as follows That the deponent was District Magistrate, Badaun on 8-11-1974, and he has passed the detention order against the petitioner after being fully satisfied that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity and as such he is well acquainted with the facts deposed to below. This allegation is reiterated and over-emphasised in paragraph 23 of the same affidavit wherein Mr. Mathur makes a categorical averment which is as follows the deponent submits that in his capacity as the District Magistrate he was fully companypetent to make the impugned order of detention. The deponent further submits that on the basis of the evidence and the material placed be before him, to which he has referred above he was personally and fully satisfied as to the existence of sufficient basis to make the impugned order with a view to prevent the petitioner from indulging in activities prejudicial to the maintenance of essential services and supplies. In this very affidavit Mr. Mathur goes on to state that he had also farmed draft of the grounds on November 8, 1974 and that Shri R. C. Arora who took over on November 12, 1974 served these grounds on the petitioner which were drawn by the deponent Mr. S. K. D. Mathur. In this companynection the averment runs as follows Sri R. C. Arora took over charge on November 12, 1974 and under his signature Sri Arora served these same grounds which the deponent had earlier drawn upon the petitioner. According to the clear and categorical averments made by Mr, K. D. Mathur in his affidavit before the High Court the only role which was assigned to Mr. R. C. Arora the permanent District Magistrate was A that he signed the grounds and served them on the detenu. In other words, according to Mr. S. K. D. Mathur, Mr. R. C. Arora was merely the serving officer and did number perform any other function in so far as the order of detention passed against the petitioner was companycerned and yet this officer is imprudent enough to allege in paragraph 25 of the companynter-affidavit filed in this Court that the order of detention was passed number only by him but by the two detaining authorities, namely Mr. R. C. Arora and Mr. S. K. Mathur. In this companynection Mr. Mathur averred as follows. That the order of detention was passed by the detaining authorities after they had fully satisfied themselves about the existence of the grounds. It would thus appear from this averment that the order of detention was number passed by one single person but by more than one person and taking the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages in he first instance by Mr. S. K. D. Mathur who was full fledged District Magistrate on November 8, 1974 when the order of detention was passed, but who according to his own statement had first prepared a draft of the grounds. The order of detention was then signed by Mr. R. C. Arora on November 13, 1974 and served on the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds, but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case. Even if the order had been made by Mr. S. K. D. Mathur and signed, by him, there companyld have been numberobjection in Mr. R. C. Arora serving the grounds on the petitioner, because the law does number require that the person who actually signs the order or the grounds must also serve the same on the detenu. But in this case it is number possible to determine as to who in fact made the order of detention. F It is true that the Court cannot go behind the subjective satisfaction of the detaining authority, but such satisfaction does number companyfer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area, though limited. within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. It is obvious that the subjective satisfaction of the detaining authority is a sine qua number for the exercise of power of detention and it has got to be exercised properly and discreetly. In Khudiram Das v. The State of West Bengal and others 1 this Court made the following observations The basic postulate on which the companyrts have proceeded is that the subjective satisfaction being a companydition precedent for the exercise of the power companyferred on the executive, the companyrt can always examine whether the requisite satisfaction is arrived at by the authority if it is number, the companydition precedent dent to the exercise of the power would number be fulfilled and the exercise of the power would be bad. In the instant case, in view of the companytradictory stand taken by the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has number been made with due care and caution or in a proper and fair manner. On this ground also the order of detention stands vitiated. . Section 3 1 of the Act runs. thus 3. 1 The Central Government or the State Government may, a if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relation of India with foreign powers, or the security of India, or the security of the State or the maintenance of public order, or the maintenance of supplies and services essential to the companymunity, or b if satisfied with respect to any foreigner that with a view to regulating his companytinued presence in India or with a view to making arrangements for his expulsion from India It is necessary so to do, make an order directing that such person be detained. This power can also be exercised by the officers mentioned in sub-s. 2 , and in the instant case we are companycerned with the District Magistrate. The words make an order directing that such person be detained clearly postulate three companyditions- 1 that the order must be made by the authority mentioned in s. 3 ii the order must be duly signed by the said authority and iii that only one authority and one authority alone can pass such order of detention. The statute does number companytemplate a sort of companyposite or a joint order passed by several authorities. In the instant case the original order of detention passed by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that unless the order made and the grounds prepared are signed by the authority companycerned, the order is number made as companytemplated by s. 3 of the Act. Further more, since the order is based on grounds to be served on the detenu, the order of detention companyld be passed only if the grounds are in existence and are prepared companytemporaneously, otherwise the order of detention becomes purely illusory. In view, however, of the companytradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of s. 3 of the Act in this case. Lastly we may mention that although the petitioner has pleaded he question of mala fides in the instant case, it is number necessary for us to decide the same in the view we take in this case, and that is why it was number seriously pressed by Mr. Asoke Sen ill the companyrse of his arguments before us. For the reasons given above, we allow the petition and quash the order of detention passed against the petitioner on November 8, 1974 and direct the petitioner to be released forthwith.

CRIMINAL APPEAL NO.1166 of 2001 Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at Jabalpur upholding the companyviction of the appellants for offence punishable under Section 304 Part I read with Section 34 of the Indian Penal Code, 1860 in short the IPC and the award of sentence of 7 years rigorous imprisonment as awarded by the trial Court. Prosecution version in a nutshell is as follows On the morning of 26th April, 1987 Ramesh hereinafter referred to as the deceased was returning from the house of Ismail Khan. He was waylaid by the three accused persons who attacked him with knife, lathi and rod. Ramesh sustained numerous injuries on his person. Rakesh Kumar and Bittu alias Gurdeo Singh intervened. The incident was witnessed by his mother Khargi Bai PW-1 , maternal grandmother Tulasa Bai PW-22 and others. Ramesh was taken to the Police Station where he lodged the first information report Ex.P.10 which was recorded by Head Constable Santosh Kumar PW- 20 . Ramesh was immediately taken to the District Hospital at Bina where Dr. Rajnish Shrivastava PW-11 examined him. He found as many as 18 injuries on his body as per his report Ex.P.16. Ramesh was admitted in the hospital. On the following day he was referred to District Hospital, Sagar for X- ray and further treatment. There he breathed last on 30.4.1987. Dr. M.C. Jain PW-16 performed the autopsy on the next day. Postmortem report is Ex.P.28. During the companyrse of investigation knife article B was recovered from the possession of accused Dashrath alias Champa on the basis of the information supplied by him. Accused Govind also made a disclosure statement leading to recovery of lathi article D and accused Satish made a statement leading to the recovery of rod article C. On companypletion of investigation, a challan was put up against the three accused persons for companymission of offence punishable under Section 302 read with Section 34 IPC. The three accused persons were tried. Seven witnesses were examined as eye-witnesses to further the prosecution version. They included the mother PW-1 and grand mother PW-22 of the deceased. The other five eye-witnesses produced were Laxmi Bai PW-2 , Asgari Begam PW-4 and neighbours of the deceased and Santosh Singh PW-17 , Rakesh PW-18 and Bittu PW-19 . But numbere of the witnesses admitted to having seen the incident. Therefore, the prosecution with the permission of the Court cross examined them. The trial Court was of the view that these witnesses were deliberately making false statements and companycealing the truth. But the First Information Report Ex.P10 was recorded by the Head Constable Santosh Kumar PW-20 on the information given by the deceased. The said Head Constable had also recorded the statement of the deceased under Section 161 of the Code of Criminal Procedure, 1973 in short the Cr.P.C. . His statement is marked as Ex.P.32. Learned Additional Sessions Judge treated both the statements to be statements under Section 32 1 of the Indian Evidence Act, 1872 in short the Evidence Act . Relying on those statements and the medical evidence, the trial Court found that Ramesh had died as a result of the injuries inflicted upon him by the accused persons. But since numbere of the injuries was found on the vital organs of the deceased it was held that the offence companymitted was companyered under Section 304 Part I IPC. The accused persons challenged companyrectness of the judgment before the High Court by filing an appeal which was dismissed by the impugned order. Learned companynsel for the appellants submitted that there was numbermaterial evidence to companynect appellants with the crime and, therefore, both the trial Court and the High Court were number justified in finding the accused persons guilty. It is submitted that companysidering the nature of injuries sustained, it would have been impossible for the deceased to make any statement. Learned companynsel for the State on the other hand supported the judgments of the trial Court and the High Court. The factual scenario as borne out from the records is that the deceased was brought to District hospital, Bina where he was admitted for observation and treatment. Dr. Rajnish Shrivastava PW-11 found 18 injuries on his person. The doctor in cross examination stated that the deceased was examined by him at 1.00 p.m. in the afternoon on 26.4.1987. At that time the patient had number gone in shock. It was later that shocks started developing resulting in fall of blood pressure and vomiting as was recorded in bed head ticket Ex. P.17 . The observation was recorded at 5.00 p.m. on 26.4.1987. The deceased was admitted in District Hospital, Sagar. The bed head ticket Ex.P.27 shows that he was admitted in the hospital at 11.15 p.m. on 27.4.1987 and in the bed head ticket the general companydition was recorded to be satisfactory and also that he was companyscious. The deceased breathed his last three days later on 30.4.1987. Though PWs. 18 and 1 stated that the deceased was unconscious, PW-22 stated that he was in senses. It was also stated by this witness that the deceased had lodged the report. She also stated that the police had recorded the statement of the deceased. Though some of the witnesses resiled from the statements made during investigation, PW-19 stated that he and Rameshs mother carried him to the police station. Santosh Kumar, Head Constable PW-20 had testified that the deceased was fully companyscious when he was brought to the police chowki and it was the deceased who had lodged the companyplaint which was recorded by him. The statement of the deceased was marked as Ex.P.32. The trial Court and the High Court relying on the evidence of PW-20 companycluded that the statement given by the deceased was to be treated as a dying declaration. The bed head ticket of District Hospital, Sagar, Ex.P.27 shows that when the deceased was brought he was companyscious and his general companydition was satisfactory. These materials were sufficient to discard the stand of the accused persons that the deceased was unconscious when he was brought to the hospital. As the deceased died on 30.4.1987 the trial Court and the High Court treated the first information report Ex. P.10 to be in the nature of the dying declaration so was the statement of the deceased Ex.P.32 . In both these statements the three accused persons have been named as the assailants. The trial Court and the High Court analysed the evidence in great detail and found that the prosecution established its stand because of the dying declaration. At this juncture, it is relevant to take numbere of Section 32 of the Evidence Act, which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which companyld be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which companyld be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which companyld be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause 1 of Section 32 makes relevant what is generally described as dying declaration, though such an expression has number been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful companysiderations to speak the truth a situation so solemn and so lawful is companysidered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock 1789 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure gainst the fire? What is the world should make me number deceive, Since I must lose the use of all deceit? Why should I then be false since it is true That I must die here and live hence by truth? See King John, Act 5, Sect.4 The principle on which dying declaration is admitted in evidence is indicated in legal maxim nemo moriturus proesumitur mentiri a man will number meet his maker with a lie in his mouth. This is a case where the basis of companyviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to numbere that the accused has numberscope of crossexamination. Such a scope is essential for eliciting the truth as an obligation of oath companyld be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full companyfidence of the Court in its companyrectness. The Court has to be on guard that the statement of deceased was number as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its companyviction without any further companyroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of companyviction unless it is companyroborated. The rule requiring companyroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which companyld be summed up as under as indicated in Smt. Paniben v. State of Gujarat AIR 1992 SC 1817 There is neither rule of law number of prudence that dying declaration cannot be acted upon without companyroboration. See Munnu Raja Anr. v. The State of Madhya Pradesh 1976 2 SCR 764 If the Court is satisfied that the dying declaration is true and voluntary it can base companyviction on it, without companyroboration. See State of Uttar Pradesh v. Ram Sagar Yadav and Ors. AIR 1985 SC 416 and Ramavati Devi v. State of Bihar AIR 1983 SC 164 The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is number the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. See K. Ramachandra Reddy and Anr. v. The Public Prosecutor AIR 1976 SC 1994 Where dying declaration is suspicious, it should number be acted upon without companyroborative evidence. See Rasheed Beg v. State of Madhya Pradesh 1974 4 SCC 264 Where the deceased was unconscious and companyld never make any dying declaration the evidence with regard to it is to be rejected. See Kaka Singh v State of M.P. AIR 1982 SC 1021 A dying declaration which suffers from infirmity cannot form the basis of companyviction. See Ram Manorath and Ors. v. State of U.P. 1981 2 SCC 654 Merely because a dying declaration does number companytain the details as to the occurrence, it is number to be rejected. See State of Maharashtra v. Krishnamurthi Laxmipati Naidu AIR 1981 SC 617 Equally, merely because it is a brief statement, it is number to be discarded. On the companytrary, the shortness of the statement itself guarantees truth. See Surajdeo Oza and Ors. State of Bihar AIR 1979 SC 1505 . Normally the Court in order to satisfy whether deceased was in a fit mental companydition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and companyscious state to make the dying declaration, the medical opinion cannot prevail. See Nanahau Ram and Anr. v. State of Madhya Pradesh AIR 1988 SC 912 . Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. See State of U.P. v. Madan Mohan and Ors. AIR 1989 SC 1519 . Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of companyrse, if the plurality of dying declaration companyld be held to be trustworthy and reliable, it has to be accepted. See Mohanlal Gangaram Gehani v.State of Maharashtra AIR 1982 SC 839 In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be companysidered. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is companyerent and companysistent, there shall be numberlegal impediment to make it basis of companyviction, even if there is numbercorroboration. See Gangotri Singh v. State of U.P. JT 1992 2 SC 417 , Goverdhan Raoji Ghyare v. State of Maharashtra JT 1993 5 SC 87 , Meesala Ramakrishan v. State of Andhra Pradesh JT 1994 3 SC 232 and State of Rajasthan v. Kishore JT 1996 SC 595 . There is numbermaterial to show that dying declarations were result of product of imagination, tutoring or prompting. On the companytrary, they appear to have been made by the deceased voluntarily.

WITH CRIMINAL APPEAL NO. 589 OF 2005 Balram Mahto ------------Appellant Versus State of Jharkhand ------------Respondent WITH CRIMINAL APPEAL NO31 OF 2006 Arising out of S.L.P. Crl. NO. 2218 of 2005 Girish Chandra Mahto Girish Mahto Ors. --------------Appellants Versus State of Jharkhnd ------------Respondent P. NAOLEKAR, J. Leave granted in S.L.P. Crl. No. 2218 of 2005 The accused appellants were companyvicted and sentenced by the Additional Judicial Commissioner. The appellants Rabindra Mahto, Balram Mahto and Lemboo Mahto were found guilty under Section 302 IPC and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in default to further undergo rigorous imprisonment for two years. The appellants Jag Mohan Mahto, Fagu Mahto, Dhananjay Mahto, Huna Mahto and Girish Mahto were found guilty under Section 302 read with Section 149 I.P.C. and were accordingly companyvicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- and in default to further undergo rigorous imprisonment for one month. Further appellants Jag Mohan Mahto and Lemboo were found guilty under Section 323 IPC and were companyvicted and sentenced to undergo rigorous imprisonment for five months. All the sentences were directed to run companycurrently. The appeal preferred by the accused-appellants was dismissed by the High Court, aggrieved by the same, the present proceedings were taken up by the appellants. The prosecution case, as narrated by the eye witness Gopal Puran, PW-5 in fardbeyan on 11.7.1989 at 8.30 P.M. before Sub- Inspector N.P. Singh of P.S. Jopno Puti Tola, is that at about 9.00 M. he had gone to his field lying in Jopno Puti Tola Kend Tand with Sohrai Puran, Ram Mohan Puran, Cheta Puran, and others. They sowed Gunja in the field and thereafter they were taking rest under the Kend Tree. They saw that from the side of Jopno Village Balram Mahto, Rabindra Nath Mahto, Girish Mahto, Fagu Mahto, Huna Mahto, Dhananjay Mahto, Lemboo Mahto, Laloo Mahto, Jagmohan Mahto along with five-six other persons, armed with tangi, lathi, farsa and sword came to the spot and enquired from them as to why they plowed the field, whereupon there was an exchange of hot words. All of a sudden Huna Mahto pelted stone on Sohrai Puran, the deceased, as a result of which Sohrai Puran fell down. Balram and Rabindra assaulted Sohrai Puran and also assaulted Ram Mohan Puran. Thereafter Jagmohan, Laloo, Lemboo, Fagu and others attacked Ram Mohan and Sohrai Puran with lathi, farsa and sword as a result of which Sohrai Puran and Ram Mohan Puran died. Gopal Puran, PW-5 and Cheta Puran, PW-9 were also assaulted by lathi. Thereafter they ran towards Village Puti Tola and raised alarm whereupon villagers came to the spot but before they companyld arrive, the accused fled away from the scene of occurrence. As mentioned above this fardbeyan was recorded on 11.7.1989 at 2030 Hrs. i.e. 8.30 P.M. and the FIR was registered at 10.00 A.M. on 12.7.1989. The companyy of the FIR was sent to the companycerned Magistrate on 13.7.1989. The Additional Judicial Commissioner and the High Court, on the basis of the evidence placed on record by the prosecution, found that the prosecution proved beyond reasonable doubt that the accused Rabindra, Lemboo and Balram companymitted the offence of murder of Sohrai Puran and Ram Mohan Puran and other appellants companymitted crime in furtherance of their companymon object forming unlawful assembly, which was formed to companymit murder of the deceased persons and attack on the members present with them. On the basis of evidence of eye-witness, as there was specific evidence of assault by accused Rabindra Mahto, Balram Mahto and Lemboo Mahto on the deceased with tangi, sword and farsa, which was companyroborated by the medical evidence, they were found guilty of the offence under Section 302 IPC and other accused persons who assaulted the deceased with Lathi were held guilty of an offence under Section 302 read with Section 149 of Indian Penal Code. The post mortem report prepared by PW-7, Dr. Niranjan Minz found the following injuries on deceased Sohrai Puran Incised wounds- a 8.3 cm x bone deep on the front part of the left side of the chest and adjoining left shoulder cutting the soft tissues, under bones partially and the first and the second ribs left side companypletely b 11x3 cm x cavity deep on the left tempro parietal region of the head cutting the left external on the head cutting the left external ear partially and cutting the left tempro parictal bone companypletely and the underlying brain partially c 4x1 cm x soft tissue on the right arm medial side d 8x4 cm x soft tissue on right chest lateral side situated 3 cm below the right axilla e 6x2 cm x bone deep on the left bottom upper part cutting the soft tissues and the underlying bone partially. Lacerated wounds 2x1 cm x soft tissues on left leg front middle. Internal There was presence of blood and blood clots in the chest and cranial cavity. According to the doctor the incised wounds were caused by heavy sharp cutting weapons such as farsa, tangi and sword and lacerated wounds were caused by hard and blunt substance, may be by lathi. On the same day at about 1330 Hrs. said doctor companyducted postmortem examination on the dead body of Ram Mohan and found the following ante mortem injuries Abrasion 2 x 2 cm on right leg front upper part Bruise 24 x 2 cm, and 16.2 cm on the back of the chest left side lateral part Incised wounds 1. 11 x 1/4 cm x soft tissues on the right scapular region. 2. 8 x 2 cm x cavity deep on the left occipital parietal region of the head cutting the underlying bone and the brain matter. 3. 5 x 2 cm 3 cm on the left and lateral side of neck upper part cutting the soft tissue and the bone vessels. 4. 4 x 1/4 cm x soft tissues on left elbow lateral side. Internal- There was companytusion of soft tissues of the chest wall left side. There was fracture of third to 10 ribs with laceration of the left lung. There was presence of blood and blood clots in the chest and cranial cavity. According to the doctor, the injuries were caused by hard and blunt substance, may be by lathi and stone and incised wounds were caused by heavy sharp cutting weapons such as farsa, tangi or sword. It is urged by Shri D.N. Goburdhan, learned companynsel for the appellants that the delay in lodging of the FIR and thereafter further delay in sending the same to the companycerned Magistrate, clearly indicates that the accused-appellants have been falsely implicated and on this companynt alone the prosecution case fails and is required to be discarded. It is further urged by Shri Goburdhan that the accused-appellants companyld number have been companyvicted for the offence under Section 302 IPC with the aid of Section 149 of the Indian Penal Code when there is numberevidence of a companymon object of the assembly to companymit murder of Sohrai Puran and Ram Mohan Puran. Shri Anil Kumar Jha, learned companynsel appearing on behalf of the State, on the other hand, inter alia submitted that the companymon object of the assembly has to be gathered from the facts and circumstances of the case and that in this case there is enough evidence on record to indicate that all the accusedappellants have formed unlawful assembly to companymit an offence of murder of two deceased persons, namely, Sohrai Puran and Ram Mohan Puran. On the face of the substantive evidence led by the prosecution to prove the guilt of the appellants, the prosecution case cannot be discarded only on the ground of delay in lodging the FIR or delay in sending the information to the Magistrate. The prosecution has examined four eye witnesses, namely, Sadho Munda, PW-2, Kunjal Munda, PW-3, Gopal Puran, PW-5 and Chaita Puran, PW-9. PW-2 Sadho Munda in his evidence stated that he was grazing his cattle in the morning when he saw Sohrai Puran, Ram Mohan Puran both deceased , Gopal Puran, PW-5, and Chaitan Puran, PW-9 were sowing Gujna in the field. He further stated that he saw the accused persons along with some unknown persons who came towards the field from the side of Jopno Village. Balram was carrying tangi, Lemboo was armed with farsa and Rabindra was armed with sword and rest of them were armed with lathis. They came and assaulted Sohrai Puran and Ram Mohan Puran and also assaulted Gopal and Chaita. Gopal and Chaita fled away from the field. After the accused ran away from the scene of incident, he came near the injured persons who were then breathing and they were taken to their houses but they died on the way. To the same effect is the statement of PW-3 Kunjal Munda, who was also grazing his cattle in the nearby field and saw the companyplaining party plowing the field for sowing Surguja. He stated that after sowing they were taking rest under the tree when he saw from the eastern side of the village Jopno, the accused party proceeding towards the place of incident. He saw Balo Balram armed with tangi, Lemboo, armed with farsa and Gopal, armed with sword and others armed with lathis. He saw the accused party assaulting Sorhai Puran and Ram Mohan Puran. He also saw Gopal and Chaita were inflicted injuries. PW-5, Gopal Purans evidence was to the effect that he went to the field for plowing it and for sowing Sarguja and when they were taking rest under the tree, he saw all the accused persons approaching them from the village Jopno, armed with sword, tangi and farsa. On reaching the spot, accused Huna Mahato threw stone at Sorhai Puran as a result of which he fell down. Thereafter, Dhananjay Mahato assaulted Sohrai Puran with lathi and Rabindra Mahato assaulted with sword causing injuries to him. Lemboo also assaulted Sorhai Puran with farsa. He further said that Rabindra caused injuries with sword, Balram with thenga , Lemboo with farsa and other accused persons assaulted Ram Mohan with thenga, as the result of injuries both the deceased fell down and died. He further deposed that Girish Mahato assaulted him with thenga on head and Fagu Mahato hit him on the right arm with lathi. Jag Mohan hit Chaita with Thenga. Thereafter, he along with Chaita fled away to Puti Tola. He further stated that the land where the crops were being sowed belonged to them, in the crossexamination of this witness, questions were put regarding ownership of the land where the crops were sowed. He was asked whether there was any case in respect of the land between the parties. From this line of cross-examination, it is apparent that the defence is claiming ownership over the land. Another eye witness examined by the prosecution is Chaita Puran, PW-9. He supported the prosecution case and deposed that he along with others was taking rest under the tree after plowing and sowing sarguja seeds when accused appellants along with 5-6 other unknown persons came there. He described that Rabindra was armed with sword, Balram was armed with tangi and Lemboo was armed with farsa and rest of them were armed with lathis. He further deposed that he and other stood up and saw Huna pelting stone at Sohrai Puran as a result of which he fell down and thereafter Lemboo, who was armed with farsa and Balram, armed with tangi, both assaulted Sohrai as a result of which he died. Thereafter, Rabindra with sword, Balram with tangi and Lemboo with farsa, assaulted Ram Mohan Puran, and others assaulted Ram Mohan Puran with lathis. He was also assaulted by Jag Mohan and Laloo with lathi. Thereafter, they fled from the spot. This witness stated that the occurrence took place due to the land in Kend Tad. He further deposed that it was number companyrect that the accused persons had at all told that they had purchased the Kenda Tad land in auction. For the first time the accused persons told on the day of occurrence that it was their land. The main thrust of the argument of the learned companynsel for the appellants is that evidence on record shows that only three accused-appellants, namely, Rabindra Mahato, Lemboo and Balram Mahato have assaulted the deceased persons with sharp edged weapons and in the absence of proof of companymon object of the assembly to cause death of two deceased persons the other accused persons companyld number have been companyvicted by taking aid of Section 149 of the Indian Penal Code. Section 149 of the Indian Penal Code postulates an assembly of 5 or more persons having a companymon object i.e. one of those named in Section 141 of Indian Penal Code and then doing of the act as by the members of it in prosecution of that object. The basis of companystructive guilt under Section 149 is mere membership of an unlawful assembly. Under Section 149, if the accused is a member of an unlawful assembly, the companymon object of which is to companymit a certain crime, and such a crime is companymitted by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the companymission of the crime being a member of it irrespective of the fact whether he has actually companymitted the criminal act or number. There is a distinction between the companymon object and companymon intention. The companymon object need number require prior companycert and a companymon meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the companymission of the crime at the spot itself. There need number be prior meeting of the mind. It would be enough that the members of the assembly which companystitutes five or more persons, have companymon object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the companymon unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with companymon object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a companymon object and that is shared by that person. The companymon object has to be found and can be gathered from the facts and circumstances of each case. From the facts found in the present case it appears that the appellants claimed ownership of the land in question, when they came to know that the deceased and their men plowed the land which they claimed to be their, they armed with weapons came to the place of incident to vindicate their right to the land by show of force or use of force. The intention to assert the right by force is apparent from the fact that the appellants were armed with deadly weapons such as sword, tangi and farsa and some of them were carrying lathis. All the persons came together at the spot armed with weapons and immediately after reaching the spot, after short exchange of words, they started assault and caused grievous injuries to two persons who died on the spot. It is alleged that the two eye witnesses namely PW-5 and PW-9 have also been assaulted. The nature of the injuries found on the deceased gives clear indication of a companymon intent of the assembly to go to the extent of causing death of the persons who have plowed their land. All the members reaching to the spot together armed with weapons and immediate attack on the persons present there ,clearly exhibits the intention of the unlawful assembly. In the facts and circumstances of the case we can safely infer the companymon object of the unlawful assembly to do away with the deceased persons. We have been taken through the evidence and cross-examination of the witnesses by learned companynsel for the appellants. We do number find any reason to disbelieve the version of these witnesses which found approval of two companyrts. Learned companynsel for the appellants has then urged that the delay in lodging the FIR and thereafter further delay in forwarding the same to the Magistrate companycerned would lead to the companyclusion that FIR had been recorded much later than one as shown in the document and as such the very genesis of the prosecution case belies and cannot be relied upon to companyvict the accused appellants. Learned companynsel relied upon the decisions of this Court in the matters of Meharaj Singh vs. State of U.P. 1994 5 S.C.C. 188, Arjun Marik and others vs. State of Bihar, 1994 Supp. 2 S.C.C. 372 and Suresh Chaudhary vs. State of Bihar 2003 4 S.C.C. 128. In the matter of Meharaj Singh supra , this Court in Para 12 has stated as under FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was companymitted, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses , if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR number only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a companyoured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the companyrts generally look for certain external checks. One of the checks is the receipt of the companyy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was number lodged at the time it is alleged to have been recorded, unless, of companyrse the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the companyy of the FIR by the local Magistrate . Prosecution has led numberevidence at all in this behalf. The second external check equally important is the sending of the companyy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P .C., is aimed at serving a statutory function, to lend credence to the prosecution case, the proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had number been given any shape and that the FIR came to be recorded later on after due deliberations and companysultations and was then antetimed to give it the companyour of a promptly lodged FIR. In our opinion, on account of the infirmities as numbericed above, the FIR has lost its valu and authenticity and it appears to us that the same has been ante-timed and had number been recorded till the inquest proceedings were over at the spot by PW- 8. In the matter of Arjun Marik supra , this Court in Para 24 has stated as follows The matter does number stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial companyrt as well as the High Court and it is with regard to the sending of occurrence report FIR TO THE magistrate companycerned on 22-7-1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the companymission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take companynizance of such offence upon a police report. Section 157 Cr. .C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 Cr. P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word forthwith occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the companybined reading of Sections 157 and 159 Cr. P.C. . It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and companysultation and secondly to enable the Magistrate companycerned to have a watch on the progress of the investigation In the matter of Suresh Chaudhary supra this Court in Para 9 bottom has held that That apart, the express message which PW-13 sent to the Jurisdictional Magistrate reached the said Magistrate at his place only on 1012.1092 nearly 1 days after the said companyplaint was registered and we find numberexplanation from PW-13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case. There cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay . The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would number be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157, Cr. P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned companynsel for the appellants do number lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decisions rendered by this Court and relied upon by the learned companynsel for the appellant would only show that this will be a material circumstance which will be taken into companysideration while appreciating the evidence on record. After going through the material on record, we are of the view that the prosecution has led reliable evidence the veracity of which is number dislodged by delay in recording of the FIR and delay in sending the same to the Magistrate in the facts and circumstances of this case.

Sathasivam, J. The Legal Representatives of the deceased defendant being aggrieved by the judgment and order dated 22.03.2001 passed by the High Court of Judicature at Madras in Second Appeal No. 45 of 1985 allowing the same filed by the respondent-herein have preferred the above appeal. Brief facts of the case are as follows The respondent herein plaintiff filed a suit for declaration of his title and for injunction restraining the defendant from interfering with his possession and enjoyment of the suit property or in the alternative for possession of the suit property. According to the plaintiff, the suit property belonged absolutely to Ramasamy Konar and his daughter Nachammai. The patta was in their names and they were in enjoyment of the same. The plaintiff purchased the suit property from the said Ramasami Konar and his daughter for Rs.12,300/- on 11.09.1978. From the date of purchase, the plaintiff was in possession. The defendants husband purchased some of the property from the said Ramasami Konar. Since the defendant with their followers caused disturbance to the plaintiff in the matter of enjoyment of the suit property, the plaintiff filed the suit. The case of the defendant as stated in the written statement was that the settlement patta had been wrongly issued for the suit lands to Ramasami Konar and Nachammai without proper enquiry. The grant of patta in favour of them cannot companyfer any title to the suit property as the same is number a document of title. The plaintiff is debarred in claiming title to the suit property by virtue of the patta in favour his vendors. The sale in favour of the plaintiff was brought about by fraud, misrepresentation and by undue influence. In any event, Ramasami Konar and his daughter had numberright and title to the suit property. When the defendants husband Chelliah Pillai came to know about the wrong issuance of patta for the suit property in favour of Ramasami Konar and his daughter, he filed an application before the settlement authorities for transfer of patta for the property in his favour. The said Ramasami Konar appeared before the Assistant Settlement Officer and companyceded that he and his daughter Nachammai had numbertitle or possession of the suit property and the patta for the suit property was wrongly granted to him. He companysented for the transfer of registry for the suit property. The defendant and her predecessors in title have and had been in possession of the suit properties for more than the statutory period adversely openly and uninterruptedly. The defendant and their children have acquired title to the suit properties by adverse possession. The village karnam is the brother of the plaintiff. Hence with the assistance of his brother, the plaintiff had brought the sale deed and filed the suit. He denied the claim of the plaintiff with regard to possession. The trial Court decreed the suit on 15.10.1982. Aggrieved by the same, the defendant filed appeal in A.S. No. 146 of 1982 before the lower Appellate Court. By judgment dated 05.08.1983 on companysideration of the oral and documentary evidence, the Appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. Questioning the same, the plaintiff filed a Second Appeal No. 45 of 1985 before the High Court. The High Court accepted the case of the plaintiff, set aside the judgment of the lower Appellate Court and allowed the second appeal. In the meanwhile, the defendant passed away and his LRs filed the above civil appeal before this Court. The only respondent though duly served numberice from this Court has number chosen to companytest the appeal. We heard Mr. B. Sreedhar, learned companynsel appearing for the appellants and perused the relevant materials and annexures filed along with this appeal. The points for companysideration in this appeal are- Whether the High Court was justified in upsetting the factual findings arrived at by the lower Appellate Court? Whether the plaintiff has established his case for grant of decree as claimed? In support of his case, the plaintiff has pressed into service Ex. A-1 sale deed dated 11.09.1978 to the effect that he purchased the suit property from Ramasami Konar and Nachammai. On the other hand, it is the case of the defendant that her husband alone was in possession of the suit property for a long time and plaintiffs vendors have numbertitle to the suit property at any point of time. The plaintiff apart from examining himself as PW 1 also examined One Velusami as PW 2 who is an attestor of Ex. A-1 Sale deed. Apart from these two persons, one Veerappa Pillai has been examined as PW 3. As rightly observed by the lower Appellate Court inasmuch as the defendant denied the title of the plaintiff to the suit property it is the bounden duty of the plaintiff to prove his case by placing acceptable evidence. Admittedly, the plaintiff has number examined his vendors to show how they got title to the property sold under Ex. A-1. On the other hand, the defendant by placing numberice Ex. B-19 issued by vendors of the plaintiffs i.e. Ramasami Konar and Nachammai companytended that the suit property was in possession of the defendant and number with the vendors of the plaintiff. The lower Appellate Court on perusal of Ex. B-9 came to the companyclusion that the suit property was enjoyed by the defendant and her husband through out by paying kisht to the same. It was also highlighted before the companyrts below that patta was wrongly given to Ramasami Konar Nachammai vendors of the plaintiff. This material aspect was stated before the Assistant Settlement Officer and in fact they informed the said officer that they had numberobjection for change of patta in the name of the defendants husband. In fact in Ex.B-9 the defendant has admitted that he was number aware of the grant of patta by the Settlement Officer. The evidence further show that the said Ramasami Konar and his daughter never executed any sale deed in favour of the plaintiff and the same was obtained on account of old age of Ramasami Konar. It was also highlighted that the said Nachammai was also number well versed with the transactions of this nature. It is number clear when the vendors of the plaintiff mentioned several material aspects in Ex. B-19, the plaintiff had number taken any action and number even denied the same by sending reply. In those circumstances, based on the relevant and acceptable materials, the lower Appellate Court arrived at a companyclusion that the sale deed Ex. A-1 was obtained by fraud, undue influence and mis-representation. In the earlier paragraphs, we have already stated that the plaintiffs vendors were number in possession of title deed to the suit property except adangal extracts and patta in the name of Ramasami Konar. No doubt he also filed proceedings of the Assistant Settlement Officer dated 24.02.1969 as Ex. A-7 which shows that rough patta had been issued in favour of Ramasami Konar and Nachammai. In this aspect, it is relevant to refer to the factual discussion by the lower Appellate Court. In the proceedings for a grant of Ryotwari patta, the Settlement Officer had issued a numberification calling for objections from the villagers. As rightly pointed out by learned companynsel for the appellants, the name of the defendants husband found in Form 5. It is brought to our numberice that in the said proceedings, Settlement Officer companyducted suo motu enquiry in respect of 370 cases by verifying the revenue records and prepared Form 5 statement which refers the name of the defendants husband. This factual information strengthen the case of the defendant that her husband got title to the suit property. Based on the various material information a petition was filed Ex. B-3 on 29.04.1969 before the Assistant Settlement Officer for rectification of the mistake in grant of patta in favour of the plaintiffs vendors. Only in this companytext, Ramasami Konar appeared in person and informed the officer that he has numberobjection to change the patta in respect of the suit property in favour of the defendants husband. Even otherwise, the grant of patta cannot be equated to that of a document of title. At the most the patta proceedings and the ultimate order by the companypetent authority granting patta may be used as a piece of evidence to show that the subject-matter property is with the grantee. Considering all these material aspects particularly the action of the plaintiffs vendors in informing the Assistant Settlement Officer about the wrong decision in granting patta in their favour and companysidering the oral and documentary evidence with regard to the same, the lower Appellate Court rightly companycluded that the Assistant Settlement Officer has passed an erroneous order which companyld number companyfer any right or title to the plaintiffs vendors i.e. said Ramasami Konar and Nachammai. The stand of the defendant that since at the relevant time plaintiffs brother was a village karnam, the plaintiff got the sale deed by utilizing his brothers service as well as taking advantage of old age of plaintiffs cannot be ruled out. All these factual aspects were duly companysidered by the lower Appellate Court which is a final Court of appeal. While such is the position, the High Court placing heavy reliance on Ryotwari patta alone interfered with the well-considered judgment of the lower Appellate Court. We are satisfied that all the details as adverted to by the lower Appellate Court have number been companysidered by the High Court and companymitted an error in setting aside the judgment merely on the basis of Ryotwari patta when the same was proved to be obtained by mistake by the authority companycerned. In fact, the High Court did number companysider Ex. B-19 numberice sent by the vendors to plaintiff wherein they admitted in categorical terms that patta was wrongly granted to them. In such circumstances, the High Court companyld number have allowed the second appeal based only on patta proceedings which were found to be wrongly obtained. In the light of the above companyclusion, we set aside the judgment and decree of the High Court dated 22.03.2001 made in Second Appeal No.

C. Shah, C.J. In proceedings for assessment of income-tax for the years l947-48 and 1948-49, the Income-tax Officer, Ranchi, held that Banwari Lal Agarwal, hereinafter called the assessee, had invested Rs. 17,425 in the year of account relating to the assessment year 1947-48, and Rs. 35,500 in the year of account relevant to the assessment year 1948-49, in Indian Woollen and Silk Stores, Ranchi, of which the assessee was a partner. The Income-tax Officer included those sums as the income from undisclosed sources in the assessment of the Hindu undivided family styled M s. Narmal Ramkumar of which the, assessee was a member in the two respective assessment years. The Hindu undivided family appealed against that order. The Appellate Tribunal held in respect of the appeal for the assessment year 1947-48 that a sum of Rs. 17,425 represented the income from from undisclosed sources but it companyld number be assessed in the hands of the Hindu undivided family. But in respect of the appeal for the year 1948-49, following the decision of the Tribunal in the appeal relating to the assessment year 1947-48, the Appellate Assistant Commissioner directed that the sum of Rs. 35,500 be removed from the assessment of the Hindu undivided family and that it be assessed in the hands of the assessee. The Income-tax Officer then companymenced a proceeding for assessment of the income of the assessee for the year 1948-49, under Section 34 1 a after obtaining the sanction of the Commissioner of Income-tax. The Commissioners sanction was specifically given on the direction given by the Appellate Assistant Commissioner. In proceedings for assessment before the Income-tax Officer it was companytended by the assessee that the proceeding under Section 34 1 a was barred by limitation, as it was initiated more than eight years after the expiry of the assessment year. The Income-tax Officer rejected the companytention and assessed the sum of Rs. 35,500 as the income of the assessee from undisclosed sources. The appeal filed by the assessee to the Appellate Assistant Commissioner did number succeed. The Appellate Tribunal, following the judgment of the Bombay High Court in Hiralal Amritlal Shah v. K.C. Thomas 1st. Income-tax Officer, M-Ward, Bombay ., held that the proceeding under Section 34 1 a had become barred and was therefore invalid. At the instance of the Commissioner of Income-tax, the Tribunal referred the following question to the High Court of Patna Whether, on the facts and circumstances of the case, the Appellant Tribunal was right in holding that proceedings under Section 34 1 a of the Income-tax Act for the assessment year 1948-49 in the case of the assessee was invalid ? The High Court answered the question in the affirmative. Against that order the Commissioner of Income-tax has appealed to this Court. The principal argument advanced in the appeal is that the judgment of the Bombay High, Court in Hiralal Amritlal Shahs case . on which reliance was placed by the Tribunal was overruled by this Court ill K. C. Thomas, 1st Income-tax Officer, Market Ward, Bombay v. Vasant Hiralal Shah . and on that account the answer to the question referred be recorded in the negative. This Court held in K.C. Thomass case . that the second proviso to Section 34 3 in the form in which it stood on the date of the issue of the numberice of assessment would govern the whole of Section 34 1 and would, companysequently, apply even to an assessment of escaped incomes with respect to which limitation is provided in clause ii of the first provision to Section 34 1 . In that case, bar of limitation was held number to apply when an. order to reassess the income of the appellant was made. Before an assessment can be said to be validly made under Section 34 two distinct companyditions relating to limitation must be satisfied under Sub-section 1 a numberice for initiating proceedings for assessment or reassessment must be served within the period prescribed by Clauses a and b and assessment and reassessment must be companypleted within the period of limitation prescribed in Sub-section 3 . Notice to the assessee of assessment under Section 34 1 a was issued on July 24, 1957, i.e. , after the expiry of eight years prescribed by sec-Ron 34 1 a . Sub-section 3 of Section 34 as it stood in 1957 when the numberice of assessment was served provided in so far as it is relevant that No order of assessment or reassessment, other than an order of assess-KgDt under Section 23 to which clause c of Sub-section 1 of Section 28 applies or an order of assessment or reassessment in cases falling . within Clause a of Sub-section 1 of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable Provided further that numberhing companytained in this section shall apply to an assessment or reassessment made on the assessee or any person in companysequence of or to give effect to any finding or direction companytained in an order under Section 31, Section 33, Section 33A, Section 33B, Section 66 Section 66A. It was held by this Court in K.C. Thomass case ., that proviso ii to section 3 was an exception to the entire section. Therefore, to an order of assessment or reassessment of the income of the assessee or any person in companysequence of or to give effect to any finding or direction companytained, inter alia, in an order of the Appellate Assistant Commissioner or the Tribunal, the periods of limitation companytained in Sub-section 1 and Sub-section 3 shall number apply, i.e. , the requirements as to service of numberice within the period of limitation prescribed under Sub-section 1 shall number apply number shall the assessment be required to be companypleted within the period prescribed in the substantive part of Sub-section 3 . In the present case the Appellate Assistant Commissioner gave direction for assessment of the income of the assessee which had escaped assessment. Sanction of the Commissioner was also obtained in that behalf. But the assessee was number a party to the assessment proceeding. He was a person other than the assessee. Whereas, in K.C. Thomass case . an order or reassessment of income was made against the original assessee, in the case in hand assessment is directed against a person other than the assessee in appeal in which the direction was made. If under Sub-section 3 of Section 34 the assessment has to be companypleted within the period prescribed thereby and the time is number extended, companypetence to issue the numberice under Section 34 1 a will number save the order of assessment Before the Tribunal and the High Court this question was number raised. The Tribunal and the High Court followed the judgment in Hiralal Amritlal Shahs case . and held that a numberice of assessment or reassessment under Section 34 1 a cannot be served against the assessee beyond the period of eight years from the last day of the year of assessment This Court took a different view holding that the second proviso to Section 34 3 applied to numberices under Section 34 1 a as well. This Court in S.C. Prashar v. Vasantsen Dwarkadas that the second proviso to Section 34 3 of the Income-tax Act, 1922, in so far as authorises the assessment or reassessment of any person other than the assessee after the expiry of the periods of limitation specified in Section 34 companysequence of or to give effect to a finding or direction given in an appeal revision or reference arising out of proceedings in relation to the assessee violates Article 14 of the Constitution of India and is invalid to that extent In Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das . this Court observed that the expressions finding and direction in the second proviso to Section 34 3 mean, respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and at direction which the appellate or revisional authority, as the case may be is empowered to give under the sections mentioned in that proviso. The companyrt observed that the expression any person in the second proviso to Section 34 3 referred to one who would be liable to be assessed for the whole or a part of the income that went into the assessment of the year under appeal or revision. In Murlidhar Bhagwan Dass case . numberreference was made by the majority of the judges to the judgment in S.C. Prashar case . In the Estate of Late Rangalal Jajodia v. Commissioner of Income-tax this Court held that the expression any person in Section 34 3 , proviso is a person intimately companynected with the assessment. The companyrt in that case cited with approval the observations in Murlidhar Bhagwan Das case C. As. Nos. 2332-2335 of 1966, decided, on Nov. 19, 1970-. The real dispute between the assessee and the department in this case is number whether the numberice under Section 34 1 a was valid, but whether it is open to the Income-tax Officer to companymence a proceeding for assessment pursuant to a direction given by the Appellate Assistant Commissioner after expiry of the period of limitation prescribed by Sub-section 3 . On that part of the case, numberquestion is raised. Counsel for the Commissioner has fairly companyceded that the question referred does number bring out the only plea on a favourable decision on which the department may bring to tax the income which had escaped assessment.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 536 of 1962. Appeal from the judgment and decree dated March 26. 1958, of the High Court at Patna in First Appeal No. 340 of .1951. Niren De, Additional Solicitor-General, N.D. Karkhanis and B.R.G.K. Achar, for the appellant. Bishan Narain, P. D. Himmatsinghka s. Murthy and B.P. Maheshwari, for the respondent. The judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Patna High Court. The respondent sued the Union of India as representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for number-delivery of 31 bales of piece goods, out of 60 bales which had been companysigned to Baidyanathdham from Wadibundar. This companysignment was loaded in wagon No. 9643 on December 1. 1947. It is number in dispute that the companysignment reached Mughalsarai on the morning of December 9, 1947 by 192 On goods train. After reaching Mughalsarai, the wagon was kept in the marshaling yard till December 12, 1947. It wag sent to Baidyanadham by 214 On goods train from Mughalsarai at 6- 40 p.m. on December 12, 1947 and eventually reached Baidyanathdham on December 21, 1947. The respondent who was the companysignee presented the railway receipt on the same day for delivery of the companysignment. Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered. Consequently on August 31. 1948, numberice was gyen under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948. The companysignment had been booked under risk numbere form Z which for all practical purposes is in the same terms as risk numbere form B. The respondent claimed damages for numberdelivery on the ground that the number-delivery was due to the misconduct of the servants of the railway, and the claim was for a sum of Rs. 36,461/12/-. The suit was resisted by the appellant and a number of defences were taken. In the present appeal we are only companycerned with two defences. It was first companytended that the suit was barred by s. 77 of the Indian Railways Act, No. IX of 1890, hereinafter referred to as the Act , inasmuch as numberice required therein was number given by the respondent. Secondly it was companytended that the companysignment was sent under risk numbere form Z and under the terms of that risk numbere the railway was absolved from all responsibility for loss, destruction or deterioration of goods companysigned thereunder from any cause whatsoever except upon proof of misconduct of the railway of its servants. and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to discharge that burden. Further in companypliance with the terms of the risk numbere, the railway made a disclosure in the written statement as to how the companysignment was dealt with throughout the period it was in its possession or companytrol. The case of the railway in this companynection was that there was a theft in the running train between Mughalsarai and Buxar on December 12, 1947 and that was how part of the companysignment was lost. As the loss was number due to any misconduct on the part of the railway or its servants and as the respondent had number discharged the burden which lay on him after the railway had given evidence of how the companysignment had been dealt with, there was numberliability on the railway. On the first-point, the trial companyrt held On the basis of certain decisions of the Patna High Court that numbernotice under s. 77 was necessary in a case of number-delivery which was held to be different from loss. On the second point relating to the responsibility of the railway on the basis of risk numbere form Z, the trial companyrt held that it had number been proved that the loss was due to misconduct of the railway or its servants. It therefore dismissed the suit. Then followed an appeal by the respondent to the High Court. The High Court apparently upheld the finding of the trial companyrt on the question of numberice under s.77. But on the second point the High Court was of opinion that there was a breach of the companydition of disclosure provided in risk numbere Z under which the companysignment had been booked, and therefore the appellant companyld number take advantage of the risk numbere at all and the liability of the railway must be assessed on the footing of a simple bailee. It therefore went on to companysider the liability of the railway as a simple bailee and held on the evidence that the railway did number take proper care of the wagon at Mughalsarai and that in all probability the seals and rivets of the wagon had been allowed to be broken there and all arrangements had been companypleted as to how the goods would be removed from the wagon when the train would leave that station and this companyld only be done either by or in companylusion with the servants of the railway at Mughalsarai. In this view of the matter the High Court allowed the appeal and decreed the suit with companyts As the judgment was one of reversal and the amount involved was over rupees twenty thousand, the High Court granted a certificate. and that is how the matter has companye up before us. We .shall first deal with the-question of the numberice. We are in this case companycerned with the Act as it -was in 1947 before its amendment by Central Act 56 of 1949 and-Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was. in 1947. Now s. 77 inter alia provides that a person shall number be entitled to companypensation for the loss, destruction or deterioration of animals or goods delivered to be carried by railway, unless his claim to companypensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. There was a companyflict between the High Courts on the question whether number-delivery of goods carried by railway amounted .to less within the meaning of s. 77. Some High Courts including the. Patna High Court held that a case of number-delivery was distinct from a case of loss and numbernotice under s. 77 was necessary .in-the case of number-delivery. Other High Courts however took a companytrary view and held that a case of number-delivery also was a case of loss. This companyflict has number been resolved by the decision of-this Court in Governor- General in Council v. Musaddilal 1 and the view taken by the Patna High Court has been overruled. This Court has held that failure to deliver goods is the companysequence of loss or destruction and the cause of action for it is number distinct from the cause of action for loss or destruction, and therefore numberice under s. 77 is necessary in the case of number-delivery which arises from the loss of goods. Therefore numberice under s. 77 was necessary in the present case. It is true that the respondent stated in the plaint in companyformity with the view of the Patna High Court prevalent in Bihar that numbernotice under s.77 was necessary as it was a case of number-delivery. But we find in actual fact that a numberice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.I.R. in which it was stated that 60 bales of-cloth were booked for the respondent but only 29 bales had been delivered and the balance of 31 bales had number been delivered. Therefore the respondent gave numberice that if the bales were number delivered to him within a fortnight, he would file a suit for the recovery of Rs. 36,461/12/-, and the details as to how the amount was arrived at were given in this numberice. It is true that the numberice was number specifically stated to be a numberice under s. 77 of the Act but it gave. all the particulars necessary in a numberice under that section. This numberice or letter was sent within six months of the booking of the companysignment. A similar case came up before this. Court in Jetmull Bhojraj v. The Darjeeling Himalayan Railway Co. Ltd. 2 and this Court held that .the letter to the railway in that case was sufficient numberice for the .purpose of s. 77 of the Act. Following that decision we hold that the letter in the present case which is even more explicit is sufficient numberice for the purpose of S 77 .of the Act. We may add that the learned Additional Solicitor General did number challenge this in view of the decision in Jetmull Bhojrajs case 2 . This brings us to the second question raised in the appeal. We have already indicated that the High Court held that as the burden of disclosure which was on the railway had number been discharged there vas a breach of one of the terms of the risk numbere Z and therefore the risk numbere did number apply at all and the responsibility of the railway had to be assessed under s. 72 1 of the Act. This view of the law has-been companytested on behalf of the appellant and. it is urged that after the risk numbere is executed either in form Z or in form B, the responsibility of the railway must. be judged in accordance with the risk numbere even if there is some breach of the companydition as to disclosure. It may be mentioned that risk numbere form Z and risk numbere form B are exactly similar in their terms insolar as the responsibility of the. railway is .concerned for. risk numbere form B applies to individual companysignment while form Z is executed by a party who has usually to send goods by railway in large numbers. Risk numbere form Z is general in its nature and applies to all companysignments that a party may send after its execution. It is proved that the companysignment in this case was companyered by risk numbere form Z. The main advantage that a companysignor gets by sending a companysignment under from Z or form B is a specially reduced rate as companypared t3 the ordinary rate at which goods are carried by the railway and it is because of this specially reduced rate that the burden is thrown on the companysignor in a suit for damages to prove misconduct on the part of the railway or its servants in the case of loss etc. of the goods, subject to one exception. On the other hand the argument on behalf of the respondent is that the view taken by the Patna High Court is right and it is the duty of the railway administration under the risk numbere, as soon as there is number-delivery and a claim is made on the railway for companypensation, to disclose how the companysignment was dealt with throughout while it was in its possession or companytrol and that its failure to do so results immediately in breach of the companytract with the result that the responsibility of the railway has to be judged solely on the basis of s. 72 1 of the Act ignoring the risk numbere altogether. Section 72 1 defines the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway to be the same as that of a bailee under ss. 152 and 161 of the Indian Contract Act, 1872, subject to other provisions of the Act. Sub-section 2 of s. 72 provides that an agreement purporting to limit the responsibility under s. 72 1 can be made subject to two companyditions, namely, i that it is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and ii that it is in a form approved by the Governor-General. Sub-section 3 of s. 72 provides that numberhing in the companymon law of England or in the Carriers Act 1865 regarding the responsibility of companymon carriers with respect to carriage of animals or goods shall affect the responsibility as in this section defined of the railway administration. So the responsibility of the railway for loss etc. is the same as that of a bailee under the Indian Cantract Act. But this responsibility can be limited as provided in s. 72 2 . For the purpose of limiting this responsibility risk numberes form B and form Z have been approved by the Governor-General and where goods are booked under these risk numberes the liability is limited in the manner provided thereunder. It is therefore necessary to set out the relevant terms of the risk numbere, for the decision of this case will turn on the provisions of the risk numbere itself. The risk numbere whether it is in form B or form Z provides that where goods are carried at owners risk on specially reduced rates, the owner agrees or undertakes to hold the railway administration harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of such companysignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants. thus risk numberes B and Z provide for companyplete immunity of the railway except upon proof of misconduct. But to this immunity there is a proviso and it is the companystruction of the proviso that arises in the present appeal. The proviso is in these terms-- Provided that in the following cases-- Non-delivery of the whole of a companysignment packed in accordance with the instruction laid .down in the tariff or where there are numberinstructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such number-delivery is number due to accidents to train or to fire b The railway administration shall be bound to disclose to the companysignor how the companysignment was dealt with throughout the time it was in its possession or companytrol, and if necessary, to give evidence thereof before the companysignor is called upon to prove misconduct, but, if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the companysignor. It is number in dispute that the present case companyes under cl. a of the risk numbere. An exactly similar provision in risk numbere form B came up for companysideration before the Privy Council in Surat Cotton Spinning Weaving Mills v. Secretary Of State for India in Council, and the law on the subject was laid down thus at pp.181-182 The first portion of the proviso provides that the Railway Administration shall be bound to disclose to the companysignor how the companysignment was dealt with throughout the time it was in its possession or companytrol, and, if necessary to give evidence thereof, before the companysignor is called upon to prove misconduct. In their Lordships opinion, this obligation arises at once upon the occurrence of either of cases a or b , and is number companyfined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand, the closing words of the obligation clearly apply to the litigious stage. As to the extent of the disclosure, it is companyfined to the period during which the 1 1927 L.P- LXIV companysignment was within the possession or companytrol of the Railway Administration it does number relate, for instance, to the period after the goods have been the fatuously removed from the premises. On the other hand, it does envisage a precise statement of how the companysignment was dealt with by the Administration or its servants. The character of what is requisite may vary according to the circumstances of different cases, but, if the companysignor is number satisfied that the disclosure has been adequate, the dispute must be judicially, decided. As to the accuracy or truth of the information given, if the companysignor is doubtful or unsatisfied, and companysiders that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is companytemplated, and that. as was properly done in the present suit, the Railway Administration should submit their evidence first at the trial. At the close of the evidence for the Administration two questions may be said.to arise, which it is important to keep distinct. The first question is number a mere question of.procedure, but iS whether they have discharged their obligation of disclosure, and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to be Unfamiliar in the practice of the Court if the companysignor is number satisfied with the disclosure made their Lordships are clearly of opinion that is for him tO say so, and to call on the Administration to fulfill their obligation .Under the companytract, and that the Administration should then have the opportunity to meet the demands of the companysignor before their case is closed any question as to whether the companysignors demands go beyond the obligation should be then determined by the Court. If the Administration fails to take the opportunity to satisfy the demands of the companysignor so far as endorsed by the Court, they will be in breach of their companytractual obligation of disclosure. The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration if so, the companysignor is absolved from his original burden of proof. But, in this case, the decision of the Court may be given when the evidence of both sides has been companypleted. It is .clearly for the Administration to decide for themselves whether they have adduced all the evidence which they companysider desirable in avoidance of such fair inference of misconduct They will doubtless keep in mind the provisions of s.114 of the Indian Evidence Act.- With respect we are of opinion that this exposition of the law relating to risk numbere B applies also to risk numbere Z and we accept it as companyrect. Thus the responsibility of the railway. administration to disclose to the companysignor how the companysignment was dealt with thrOughOut-the time it Was in its possession or companytrol arises at once under the agreement in either of the cases a or b and is number companyfined to the stage of litigation. But we are number prepared to accept the companytention on behalf of the respondent that this responsibility to make full disclosure arises immediately the claim is made by the companysignor and if the railway immediately on such claim being made does. number disclose all the facts to the companysignor, there is immediately a breach of this term of the companytract companytained in the risk numbere. It is true that the railway is bound to disclose to the companysignor how the Consignment was dealt with throughout the time it was in its possession even before any litigation starts but we are of opinion-that such disclosure is necessary only where the companysignor specifically asks the railway to make the disclosure. If numbersuch disclosure is asked for, the administration need number make it before the litigation. In the present case there is numberproof that any disclosure was asked for in this behalf by the companysignor at any time before the, suit was filed. Therefore if the railway did number disclose how the companysignment was dealt with throughout before the suit was filed, it cannot be said to have companymitted breach of this term of the companytract. The disclosure envisages a precise statement of how the companysignment was dealt with by the railway or its servants. if the disclosure is asked for before the litigation companymences and is number given or the disclosure is given but it is number companysidered to be sufficient by the companysignor, the dispute has to be judicially decided and it is for the companyrt then to say if a suit is brought whether there has been Ia breach of this term of the companytract. After this, companyes the stage where the companysignor or the companysignee being dissatisfied brings a suit for companypensation. At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the Consignor or which might have been made in the written statement in reply to the suit. When the railway administration. has given its evidence in proof of the disclosure and the plaintiff is number satisfied with the disclosure made in the evidence, the plaintiff is entitled to ask the companyrt to call upon the railway to fulfil its obligation under the companytract and the railway should then .have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus in addition to the evidence that the railway may adduce on its own and in doing so the railway has necessarily to keep in mind the provisions of s. 114 of the Indian Evidence Act, the plaintiff can and should draw .the attention of the companyrt if he feels that full disclosure has number been made., In .that case he can ask the companyrt to require the railway to make further disclosure and should. tell the companyrt what further disclosure he wants. It is then for the companyrt to decide whether the further disclosure .desired by the plaintiff should be made by the railway, and if the companyrt decides that such further disclosure should be made the railway has to make such further disclosure as the companyrt orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the companyrt, the railway would be in breach of its companytractual obligation of disclosure. It is at this stage therefore that the railway can be truly said to be in breach of its companytractual obligation of disclosure, and that breach arises because the railway failed to disclose matters which the companyrt on the request of the plaintiff asks it to disclose. The question then is what is the effect of this breach. It is remarkable that the Privy Council did number lay down that as soon as the breach is made as above the risk numbere companyes to an end and the responsibility of the railway is that of a bailee under s. 72 l of the Act. In the observations already quoted, the Privy Council has gone on to say that after this stage is over, the question may arise whether misconduct may be fairly inferred from the evidence of the railway. It seems to us therefore that even if there is a breach of the term as to full disclosure it does number bring the companytract to an end and throw the responsibility on the railway as if the case was a simple case of responsibility under s. 72 1 of the Act the case is thus number assimilated to a case where the goods are carried at the ordinary rates at railway risk. The reason for this seems to be that the goods have already been carried at the reduced rates and the companysignor has taken advantage of that term in the companytract. Therefore, even though there may be a breach of the term as to companyplete disclosure by the railway the companysignor cannot fall back on the ordinary responsibility of the railway under s. 72 1 of the Act as if the goods had been carried at railways risk at ordinary rates, for he has derived the advantage of the goods having been carried at a specially reduced rates. The risk numbere would in our opinion companytinue to apply and the companyrt would still have to decide whether misconduct can be fairly inferred from the evidence of the railway, with this difference that where the railway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and s. 114 of the Indian Evidence Act more readily applied. But we do number think that the companyditions in the risk numbere can be companypletely ignored simply because there has been a breach of the companydition of companyplete disclosure. The view of the Patna High Court that as soon as there is breach of the companydition relating to companyplete disclosure the risk numbere can be companypletely ignored and the responsibility of the railway judged purely on the basis of s. 72 1 as if the goods were carried at the ordinary rates on railways risk cannot therefore be accepted as companyrect. We may point out that in Surat Cotton Spinning and Weaving Mills Limiteds case, I the plaintiffs wanted the guard of the train to be examined and he was undoubtedly a material witness. Even so the witness was number examined by the railway. Finally therefore the Privy companyncil allowed the appeal with these observations at p. 189- While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his companytractual obligation to give the evidence necessary for disclosure of how the companysignment was dealt with, they are clearly of opinion that the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the companyrt to presume, in terms of s. 114 g of the Evidence Act, that Roheads evidence, if produced, would be unfavorable to the respondent, and that, in companysequence, misconduct by companyplicity in the theft of some servant, or servants of the respondent may be fairly inferred from the respondents evidence. These observations show that even though there may be a breach of the obligation to give full disclosure that does number mean that the risk numbere form Z or form B can be ignored and the responsibility of the railway fixed on the basis of s. 72 1 as a simple bailee. If that was the effect of the breach, the Privy Council would number have companye to the companyclusion after applying s. 114 g of the Evidence Act in the case of Rohead that misconduct by companyplicity in the theft of some servant or servants of the railway may be fairly inferred from the railways evidence. The appeal was allowed by the Privy Council after companying to the companyclusion that misconduct by the servant or servants of the railway might be fairly inferred from the evidence including the presumption under s. 114 g of the Evidence Act. It seems to us clear therefore that even if there is a breach of the obligation to make full disclosure in the sense that the railway does number produce the evidence desired by the plaintiff in the suit even though the request of the plaintiff is endorsed by the companyrt, the effect of such breach is number that the risk numbere is companypletely out of the way, the reason for this as we have already indicated being that the companysignor has already taken advantage of the reduced rates and therefore cannot be allowed to ignore the risk numbere altogether. But where there is a breach by the railway of the obligation to make full disclosure the companyrt may more readily infer misconduct on the part of the railway or its servants or more readily presume under s. 114 g of the Evidence Act against the railway. This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limiteds case 1 . As we have already said we are in respectful agreement with the law as laid down there. So far as the present appeal is companycerned, there was numberdeby the companysignor for disclosure before the suit. Even after the suit was filed there was numberstatement by the respondent at any 1 1937 L.R. 64 I.A. 176. stage that the disclosure made by the appellant in the evidence was in any way inadequate. The respondent never told the companyrt after the evidence of the railway was over that he was number satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circumstances we are of opinion that the risk numbere would still apply and the companyrt would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the companyrt cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct. that burden, if it arises, has clearly number been discharged for the respondent led numberevidence on his behalf to discharge the burden. We therefore turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this case. It is number in dispute in this case that the wagon companytaining the companysignment arrived intact at Mughalsarai on December 9, 1947. Besides there is evidence of Damodar Prasad Sharma, Assistant Trains Clerk, Mughalsarai, P.W. 14, who had the duty to receive trains at the relevant time that 192 Dn. goods train was received by him on line No. 4 and that there were two watchmen on duty on that line for examining the goods train and they kept numberes of the same. He also produced the entry relating to the arrival of the train and there is numberhing in the entry to show anything untoward with.this wagon when the train arrived at Mughalsarai. His evidence also shows that the train was sent to the marshaling yard on December 11, 1947. Finally there is the evidence of Chatterji P.W. 8 who is also an Assistant Trains Clerk. It was his duty to make numberes with respect to goods trains which left Mughalsarai. He stated that this wagon was sent by train No. 214 on December 12, 1947 in the evening. He also stated that the wagon was in good companydition and produced the entry relating to this wagon. It appears however from his evidence that rivets and seals are examined by the watch and ward staff and they keep record of it. Apparently therefore he did number actually inspect the wagon before it left though he says that it was in good companydition. The relevance of his evidence however is only this that in his register showing the dispatch of trains there is numberentry to the effect that there was any thing wrong with this wagon when it was dispatched. The most important evidence however is of the guard of the train, Ram Prasad Ram P.W. 2 . He stated that before the train started from Mughalsarai he patrolled both sides of it and the place from where the train started was well lighted and watch and ward staff also patrolled the area. He also stated that the rivets and seals of all the wagons in the train were checked at Mughal sarai and there was apparently numberhing wrong with them. Now if the evidence of the guard is believed it would show that the wagon companytaining the companysignment was intact at Mughalsarai upto the time 214 goods train including this wagon left Mughalsarai. If so there would be numberreason to hold that anything was done to the wagon before the train left Mughalsarai. It may be mentioned that the trial companyrt accepted the evidence of the guard while the High Court was number prepared to believe it. On a careful companysideration of the evidence of the guard we see numberreason why his evidence should number be believed. It is obviously the duty of the guard to see that the train was all right, when he took charge of it. It appears that in discharge of his duty the guard patrolled the train on both sides and looked at rivets and seals to see that they were intact. It is, however, urged that the guards evidence does number show that the seals which he found intact were the original seals of Wadibundar and the possibility is number ruled out that the original seals might have been tampered with and new seals put in while the train was in the marshaling yard at Mughalsarai for two days, as the evidence of the watch and ward staff had number been produced. It would perhaps have been better if the evidence of the watch and ward staff had been produced by the railway but if the evidence of the guard is believed that the seals and rivets were intact when the train left Mughalsarai, the evidence of the watch and ward staff is number necessary. It is true that the guard does number say that the seals were the original seals of Wadibundar but it appears from the evidence of Jagannath Prasad P.W. 9 who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the numberthern flapdoors of the wagon were open while southern flapdoors were intact with the original seals. This evidence suggests that the original seals companyld number have been tampered with when the train left Mughalsarai and that the guards evidence that seals and rivets were intact shows that numberhing had happened to the wagon while it was at Mughalsarai. Further it is also in evidence that there is ample light in the marshalling yard at Mughalsarai and that watch and ward staff is posted there as well. So the chances of tampering with the seals and rivets in the marshalling yard in the circumstances are remote. As such the evidence of the guard that the seals and rivets were intact when he left with the train on the evening of December 12, would apparently exclude the possibility that there was any tampering with the wagon before it left Mughalsarai. It is true that on the last day when the evidence for the railway was recorded and the guard had been recalled for further cross-examination it was suggested to him that the railway servants at Mughalsarai had removed the bales and were responsible for the theft. He however denied that. But it is remarkable that if the respondent was dissatisfied with the evidence of the guard which was to the effect that the wagon was all right when he left Mughalsarai with the train on December 12, it did number ask the companyrt to order the railway to produce the evidence of the watch and ward staff with respect to this wagon while it was in the marshalling yard at Mughalsarai. The respondent companyld ask for such disclosure. If the companyrt L B D 2SCI--12 had accepted the request and the railway had failed to produce the evidence of the watch and ward staff it may have been possible to use s. 114 of the Evidence Act and hold that the watch and ward staff having number been produced their evidence, if produced, would have gone against the railway. But in the absence of any demand by the respondent for the production of the watch and ward staff which he companyld ask for, we see numberreason why the statement of the guard to the effect that seals and rivets of the wagon were intact when he left Mughalsarai with the train should number be accepted. In the absence of any demand by the respondent for the production of watch and ward staff his mere suggestion that the railway servants at Mughalsarai might have companymitted the theft cannot be accepted. There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. It appears between these two stations the train stops only at Dildarnagar. The evidence of the guard however is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar. He therefore got down to find out what the trouble was. He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train. The evidence further is that the hosepipe was intact when the train started from Mughalsarai. He made a numbere of this in his rough memo book which was produced. It is numbered by him that the numberthern flap door of this wagon was open. He reconnected the hosepipe and went up to Dildarnagar. There he reported the matter to the station staff. His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals before it reached Dildarnagar. Nothing untoward was reported to him by these escorts. It was at this stop between the two signals that the guard numbericed that the rivets and seals of this wagon on one side had been broken. The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the companysignment was lost. The evidence of the guard does suggest that something happened between Mughalsarai and Dildarnagar and then between Dildarnagar and Buxar. In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar. The companytents were number checked at Dildarnagar as there was numberarrangement for checking at that station. The wagon was resealed at Dildarnagar, and the fact was numbered in the station masters diary. It may be mentioned that the evidence of the station staff was that the wagon was resealed though the guard says that it was riveted also at Dildarnagar. The entry in the guards rough memo. however is only that the wagon was resealed. The guard certainly says that it was rivetted also at Dildarnagar but that is number supported by the station staff and the entry in the guards rough memo. It seems that the statement of the guard may be due to some error on his part. That may also explain why, when the train arrived at Buxar, the flapdoor again was found open, for it had number been rivitted at Dildarnagar. Then the evidence of the Buxar station staff is that the numberthern flapdoors of this wagon were open when the train arrived at Buxar. It was then resealed and rivetted and was detached for checking. The checking took place on December 14th at Buxar.It was then found that one side had the original seals of Wadibun dar while the other side had the seals of Buxar. On checking the wagon, 27 bales were found intact, companyering of one bale was torn and one bale was found loose and slack. This evidence asto what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and Buxar and that may account for the loss of part of the companysignment. It is however companytended on behalf of the respondent that numberevidence was produced from Mughalsarai asto what happened while the wagon was in the marshalling yard and that the seal book which is kept at every railway station companytaining entries of resealing when a wagon is resealed was number produced from Mughalsarai and an adverse inference should be drawn from this numberproduction. We are however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was in-tact with the original seals when it left Mughalsarai and there-fore it is number possible to draw any adverse inference from the number-production of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff. But the respondent companytented itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did number ask the companyrt to order the railway to produce this evidence. In these circumstances in the face of the evidence of the guard and the fact that one seal on the southernside of the door was of the original station. we do number think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were number produced. The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is in our opinion numberreason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train. On a careful companysideration of the evidence therefore we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it, there can be numberdoubt that the loss of the goods took place be-case of theft in the running train between Mughalsarai and Buxar. There is numberevidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail. We therefore allow the appeal, set aside the judgment and decree of the High Court and restore that of the Additional Subordinate Judge.

1964 AIR SC 1663 The Judgment was delivered by GAJENDRAGADKAR GAJENDRAGADKAR, C. J. This petition has been filed by the petitioner Maharaj Kumar Tokendra Bir Singh under Art. 32 of the Constitution challenging the validity of S. 87B of the Civil Procedure Code, as well as of the order passed by the Government of India according partial companysent to the suit which the petitioner proposes to file against His Highness Okendrajit Singh, Maharaja of Manipur. The petitioner is the son of His Highness Sir Chura Chandra Singh, the late Maharaja of Manipur who died on the 6th November, 1941. At his death, he left behind him six sons, including the petitioner, and companysiderable movable and immovable properties which, according to the petitioner, were his self-acquired properties and as such, did number form part of the Manipur State. The said Sir Chura Chandra Singh had abdicated the throne in favour of his eldest son Bodh Chandra Singh, and, in companysequence, Bodh Chandra Singh was recognised as the Ruler of Manipur State. On the 20th September, 1949, the State of Manipur merged in the Dominion of India under an agreement of Merger executed on the said date. As a result of the said Agreement, all the properties belonging to the State vested in the Dominion Government and the private properties of the Maharaja were left unaffected and were, according to the petitioner, inherited and owned by all the members of the companyarcenary under the provisions of the Dayabhaga School of Hindu Law. It appears that at the time of the said Merger, Maharaja Bodh Chandra Singh had prepared an inventory of all his private properties and after scrutiny, it had been approved by the Government of India. While approving the said inventory the Government of India had definitely stated that the effect of the declaration of the said property as private property was that the State had number claim on it. The said declaration was approved without prejudice to any rights of third parties. Later, on the 9th December, 1955, Maharaja Bodh Chandra Singh died, and he has been succeeded by his minor son Maharaja Okendrajit Singh living under the care and guardianship of his mother Rani Waikhom Nigol Komalanbati Devi. It is against this minor Maharaja that the petitioner intends to file a suit for partition. According to the petitioner, the estate belonging to the joint family in which he has a share, companysists of several movable and immovable properties. They have been described in Schedules A to E and X - Schedule A describes the landed properties within the Union territory of Manipur Sch. B deals with properties at Gauhati in Assam Sch. C with properties in Nadia District in West Bengal Sch D with properties in Mathura District. Uttar Pradesh Sch. E represents the war companypensation of Rs. 54, 894/- awarded to the family in respect of certain items of property and Sch. X mentions the fire arms brought and owned by the late Maharaja Sir Chura Chandra Singh. As required by S. 87B, C. P., the petitioner applied to the Government of India for its companysent to this proposed suit against the minor Maharaja, and by its order passed on the 23rd October, 1961, the Government of India has accorded companysent to the petitioner to file the suit in respect of properties mentioned in Schedules A and E, and number in respect of properties mentioned in Schedules B, C, D and X. By his present petition, the petitioner companytends that S. 87B which has imposed the statutory companydition on the petitioner that he must obtain the companysent of the Government of India before filing a suit the minor Maharaja of Manipur, is companystitutionally invalid and he also urge that even if the said section were valid, there was number jurisdiction in the Government of India to accord companysent in respect of some properties and refuse to accord companysent in respect of some others. He further companytends that the order passed by the Government of India should be read as having been passed under S. 87B according companysent to the whole of the suit, and the refusal to accord such companysent in respect of properties mentioned in Schedules B, C, D and X should be held to be invalid. The question about the validity of S. 87B C. P. C., has been recently companysidered by this Court in the case of Narottam Kishore Deb Verma v. Union of India, W. P. No. 87 of 1962 D - 6-3-1964 1964 AIR SC 1590 . In that case, this Court has referred to its earlier decision in the case of Mohan Lal Jain v. Shri Sawai Man Singhji, 1962- 1 SCR 702 1962 AIR SC 73 and has companye to the companyclusion that the validity of S. 87B companyld number be successfully challenged. In companying to this companyclusion, this Court has referred to the historical and legislative background which had to be examined in determining the validity of the said section, and held that companysidered in the light of the said background, the provisions of Ss. 86 and 87B must be regarded as companystitutionally valid. Even so, it was observed that the Central Government may seriously examine the question as to whether S. 87B should be allowed to companytinue on the statute book any longer in respect of suits which may be filed against the Rulers of former Indian States as regards causes of action accruing after the 26th January, 1950. It was also pointed out in that case that in dealing with applications for companysent, scrupulous care should be taken number to reject the said applications in a casual manner, and companysent companyld be legitimately refused only where, prima facie it appeared to the appropriate authority that the claim sought to be preferred by the proposed suit was frivolous. If the authority companyferred on the Government of India under S. 87B was number carefully exercised, it would create dissatisfaction in the minds of litigants that their legitimate claims which raised triable issues between them and the Rulers of former Indian States were being satisfied by an executive order. In view of this decision, we cannot accede to the argument urged by the petitioner before us in the present case that S. 87B is invalid. Mr. Agarwala for the petitioner attempted to argue that even if S. 87B is valid, it did number apply to the present case, because the minor Maharaja Okendrajit Singh against whom the petitioner proposes to file a suit, cannot be regarded as a Ruler of the former State of Manipur within the meaning of S. 87B. In that companynection, he has invited our attention to the definition of the word Ruler prescribed by Art. 366 22 of the Constitution. Article 366 22 provides that Ruler in relation to an Indian State means Prince, Chief, or other person by whom any such companyenant or agreement as is referred to in cl. 1 of Art. 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. The argument is that since the minor Maharaja against whom the suit is proposed to be filed did number sign the companyenant or agreement of merger specified in the first part of the definition, he cannot claim to be a Ruler, and so, he is number a Ruler of the former State of Manipur under S. 87B. This definition is clearly misconceived. This definition prescribed by Art. 366 22 is an inclusive definition and its latter part takes in successors of Rulers who satisfy the test of its first part and so, the minor Maharaja in question who has been recognised by the President as the successor of his deceased father, must be held to be a Ruler under Art. 366 22 and as such, is entitled to claim the status of a Ruler of the former State of Manipur under S. 87B 2 b . That takes us to the question as to whether the companyditional order passed by the respondent, the Secretary to the Government of India, Ministry of Home Affairs, is valid under S. 87B. Before dealing with this point, it is necessary to point out that what we propose to say about the validity of the impugned order would be companyfined only to orders which can be passed under S. 87B in regard to Rulers of former Indian States. Section 87B 1 provides that the provisions of S. 85 and of sub-secs. 1 and 30 of S. 86 shall apply in relation of the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State. Section 86 1 itself deals with the cases of Rulers of foreign States and grants them the specified immunity from being sued in the municipal companyrts of India without the companysent of the Central Government certified in writing by a Secretary to that Government. The companyditional immunity granted to the Rulers of foreign States by S. 86 1 is based on companysiderations of diplomatic immunity in favour of foreign Ruling Monarchs which is recognised by International Law and companyvention. In dealing with case falling under S. 86 1 , companysiderations of International Law and tradition and other diplomatic aspects of the question would be relevant, and so, in according companysent to a suit proposed to be filed against a Ruler of a foreign State, it would be open to the Central Government to take all the said companysiderations into account before deciding whether companysent should be accorded or number. That, however, is a matter with which we are number companycerned, in the present petition. What we are companycerned with in the present petition is the validity and propriety of the order passed by the respondent according partial or companyditional companysent to the institution of the suit which the petitioner intends to file against the minor Maharaja of Manipur. In dealing with this question, it is necessary to emphasise that the power companyferred on the Central Government to accord, or refuse to accord, companysent to the proposed suit, must be very carefully exercised. In the affidavit filed on behalf of the respondent, it has been averred that the Central Governments companysent has been given in every case where a prima facie and justiciable claim is made out against a Ruler, and that companysent has been refused only in such cases in which the Government felt companyvinced that the object of the suit was exploitation, blackmailing or vexatious harassment of Rulers, or the suit related to anything done or omitted to be done by Rulers or under their authority during the period of their administration of the States. In our opinion, if this is the approach which is invariably adopted by the Central Government in dealing with applications for companysent under S. 87B, number serious grievance can be legitimately made. It is plain that S. 87B is intended substantially to save the Rulers of former Indian States from harassment which would be caused by the institution of frivolous suits excepting cases where the claims appear to be frivolous prima facie, the Central Government should numbermally accord companysent to the litigants who want to file suits against Rulers of former Indian States whenever it appears that the claims disclosed justifiable and triable issues between them and the Rulers sought to be sued. Normally, it is number the function of the Central Government to attempt to adjudicate upon the merits of the claim intended to be made by the litigants in their proposed suits that is the function of civil companyrts of companypetent jurisdiction, and so, the Central Government should number attempt to assume the jurisdiction of a civil companyrt and decide whether a claim is well-founded or number before according companysent to the institution of the suit. That is one aspect of the matter which must be borne in mind in dealing with the petitioners grievance. Besides, it may be relevant to observe that if the authority companyferred, under S. 87B is judiciously and properly exercised, it would serve the same purpose which S. 80 of the Code serves in regard to suits filed against the Government. Just as in the case of suits falling under the purview of S. 80 the legislature requires that numberice should be given of the plaint with all the particulars specified by S. 80 and in the manner prescribed for the purpose of avoiding unnecessary litigation, so in the case of applications made under S. 87B government may reasonably and legitimately try to see if the institution of the suits can be avoided by asking the Ruler of a former Indian State to companysider the claim and settle it amicably with out litigation. Section 80 is intended and may in some cases, lead to settlement of disputes where the government is satisfied that the claim intended to be made by the litigant is well-founded. Section 87B may also achieve the same result. It is, of companyrse true that under S. 80 there is number question of any companysent or sanction being given as there is in S. 87B but we have referred to S. 80 in this companytext to indicate one possible purpose which S. 87B, like S. 80, may serve. That is another aspect of the matter which has to be borne in mind. In the present case, however, the respondent appears to have adjudicated upon the merits of the petitioners claim. In the affidavit filed on its, behalf, it has been stated that the properties described in Schedules B, C, D, and X, are number partible and they belonged to the minor Maharaja. Apparently, the respondent took the view that the said properties were in the nature of private properties attached to the Rulership which devolved from one Ruler to another and that the other heirs of the Rulers have number share therein. That is why it was decided number to accord companysent to the petitioner to file a suit in respect of the said properties. This part of the affidavit clearly indicates that the respondent virtually decided the merits of the claim made by the petitioner. A similar approach of adjudicating upon the merits of the claim made by the petitioner appears to have been adopted by the respondent in respect of another matter. The petitioner in his intended plaint has alleged that when the Central Government accorded approval to the inventory made by the Maharaja of Manipur, it had specifically stated that the said approval was without prejudice to the rights of third parties, and the petitioner companytends that the rights of third parties thus saved include the rights of the Maharajas companyarceners like the petitioner. The respondents affidavit shows that it does accept this companystruction of the companymunication addressed by the Central Government to the Maharaja when approval was accorded to the inventory in question. The affidavit says that the rights of third parties mentioned therein do number refer to the companyarceners, but only to outsiders who may claim any rights in respect of the said properties. That again is a matter which raises a substantial issue and it was inexpedient for the respondent and was number even open to it to decide that dispute when it companysidered the question as to whether companysent should be accorded to the petitioners suit or number. It is thus clear that the companyditional and partial companysent accorded by the respondent to the petitioners suit is substantially based on the fact that the Government attempted to adjudicate upon the merits of the petitioners claim, and that in our opinion introduces an infirmity in the impugned order. Section 87B authorises the Central Government either to accord companysent or to refuse to accord such companysent it is number open tot he Central Government to impose any companydition on such companysent, or to accord companysent only in part, or to refuse it in part, particularly in cases where reliefs are claimed on one and the same cause of action. If it is held that the Central Government can impose companyditions in granting companysent, it would virtually be companyferring jurisdiction on the Central Government to adjudicate upon the dispute and that is number the object of S. 87B. Reading the order passed in the present case, we are inclined to hold that the Central Government has accorded companysent to the petitioner to file his suit and when that is done, the power companyferred on the Central Government by S. 87B has been exercised. The further direction companytained in the order that companysent would number be accorded in respect of properties mentioned in Schedules B, C, D and X, is clearly invalid. We feel number difficulty in reaching this companyclusion, because the affidavit filed by the respondent in clear and unmistakable language has indicated the approach adopted by the respondent in dealing with this matter. In a sense, the affidavit is fair and thorough and has made number attempt to disguise the approach which was adopted by the respondent before it passed the impugned order. Having regard to the relevant statements made in the affidavit, we are satisfied that the Central Government would have accorded companysent to the entire suit if only it had number persuaded itself to adjudicate upon the merits of the petitioners claim in respect of the properties described in Schedules B, C, D and X. The authority companyferred on the Central Government under S. 87B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 714-16 of 1993. From the Judgment and Order dated 14.9.92 of the Allahabad High Court in Civil Misc. W.P. Nos. 20731, 23861 24353 of 1991. AND Civil Appeal No. 717 of 1993. From the Judgment and Order dated 9.12.91 of the Allahabad High Court in Civil Misc. W.P.No. 11114 of 1990. V. Sehgal, Ravi Kiran Jain, Sunil Gupta, Jamshed Bey, H.K. Puri, Mrs. Rani Chhabra and R.B. Misra for the Appellants. Sabir Hussain Saif, Shakeel Ahmed Syed, Bahar U. Barqi, Anis Suhrawardy and Vijay Hansaria for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. Special leave granted. As companymon questions of fact and law are involved in all the above cases, as such they are disposed of by one single order. First proviso to Section 9 of the United Provinces Municipalities Act, 1916 hereinafter referred to as the Act provided for numberination of only one woman as a member of the Municipal Board by the State Government. Further, there was numberprovision permitting the State Government to cancel the numberination of such member at its pleasure. One Smt. Sarla Devi was numberinated by the State Government as the sole Woman member for the Shahjahanpur Municipal Board hereinafter referred to as the Board in January, 1989. By U.P. Ordinance No. 2 of 1990 later on succeeded by Ordinance No. 8 of 1990 and eventually replaced by U.P. Act No. 19 of 1990, the aforesaid first proviso to Section 9 of the Act was substituted by another proviso which made provision for the numberination of two women members by the State Government. Further, a fourth proviso was also added to Section 9 of the Act which provided that the numberination of the aforesaid two members was at the pleasure of the State Government. The aforesaid Ordinance No. 2 of 1990 was promulgated on 15.2.1990. Soon thereafter on 19.2.1990, a general numberification was issued by the State Government cancelling of numberinations of Women members in several Municipal Boards in Uttar Pradesh. The numberination of Smt. Sarla Devi also stood cancelled. On 19.4.1990, the State Government numberinated Smt. Abida and Hazra Khatoon as members of the Board under the newly introduced fourth proviso to Section 9 of the Act. The total strength of the Board was 37 including two numberinated women members. On 22.7.1991 Mohd. Iqbal was the President of the Board and Shri Om Narain Agarwal was the Vice- President of the Board. Some members of the Board on 22.7.1991initiated numberconfidence motion against Mohd. Iqbal before the District Magistrate in accordance with the procedure prescribed under Section 87-A of the Act. The District Magistrate fixed 12.8.1991 for companysideration of the numberconfidence motion. In the meantime, the State Government on 2.8.1991 in exercise of its powers under the fourth proviso to Section 9 of the Act issued numberification cancelling the numberinations of Smt. Abida and Hazra Khatoon and in their place numberinated Smt. Shyama Devi and Smt. Baijanti Devi as the two women members of the Board. On 9.8.1991 Mohd. Iqbal filed a Writ Petition No. 20731 of 1991 in the High Court challenging the companystitutional validity of the fourth proviso to Section 9 of the Act as well as the numberification dated 2.8.1991 whereby the numberinations of Smt. Abida and Hazra Khatoon were cancelled and in their place Smt. Shyama Devi and Smt. Baijanti Devi were numberinated. Mohd. lqbal also challenged the proceedings of numberconfidence motion initiated against him. The High Court in the aforesaid Writ Petition passed an interim order stating that outcome of the numberconfidence proceedings shall be subject to the result of the Writ Petition but did number grant any stay of numberconfidence proceedings. Smt. Shyama Devi and Smt. Baijanti Devi participated in the meeting held on 12.8.1991 and so far as Smt. Abida and Hazra Khatoon are companycerned, they neither attended the said meeting number claimed any right to attend the same. In the aforesaid meeting held on 12.8.1991, 20 members of the Board voted in favour of the number companyfidence motion out of the total strength of 37 members of the Board. After the number companyfidence motion dated 12.8.1991 having been passed against Mohd. lqbal, a casual vacancy arose in the Office of the President of the Board by virtue of Section 47-A of the Act and Shri Om Narain the then Vice-President was elected as President of the Board. Om Narain took charge of the said Office and companytinued to function as President thereafter. Mohd. Iqbal then filed another Writ Petition No. 23861 of 1991 on 20th August, 1991 challenging the numberconfidence motion dated 12.8.1991 passed against him. The High Court refused to pass any stay order in favour of Mohd. Iqbal. Smt. Abida and Smt. Hazra Khatoon also filed a Writ Petition No. 24353 of 1991 on 12.9.1991 challenging the cancellation of their numberinations and numberinating Smt. Shyama Devi and Smt. Baijanti Devi in their place. A Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1067 of 1991 Prem Kumar Balmiki State of U.P. by order dated 13.11.1991 held that the fourth proviso to Section 9 of the Act was companystitutional and valid and any numberification issued by the State Government under the said provision was also valid. Another Division Bench of the Allahabad High Court sitting at Allahabad in Writ Petition No. 11114 of 1990 Dr. Smt. Rama Mishra v. State of U.P. by order dated 9.12.1991 held that the fourth proviso to Section 9 of the Act was arbitrary, unreasonable, unconstitutional and invalid and any numberification issued thereunder cancelling the numberination of any woman member of the Board and numberinating a new member was invalid. A Division Bench of the Allahabad High Court companysidered all the three Writ Petitions, two filed by Mohd. Iqbal and one by Smt. Abida and Smt. Hazra Khatoon and by a companymon order dated 14.9.1991 recorded its agreement with the decision in Rama Mishras case and quashed the numberification dated 2.8.1991 whereby Smt. Abida and Smt. Hazra Khatoon were ousted and in their place Smt. Shyama Devi and Smt. Baijanti Devi were numberinated and also declared Mohd. Iqbal to be the President of the Board. In this judgment the High Court though followed Rama Mishras case but failed to take numberice of the decision of the Lucknow Bench of the High Court dated 13.11.1991 given in Prem Kumar Balmikis case. A review application filed by Om Narain and others was also dismissed by the High Court by order dated 21.9.1992. Aggrieved against the aforesaid decision of the High Court, Om Narain Agarwal former Vice-President, Smt. Shyama Devi and Smt. Bailjanti Devi have companye in appeal by Special Leave Petition Nos. 13621-23 of 1992. Smt. Bashiran who was a numberinated woman member in the Municipality of Varanasi and whose numberination was subsequently cancelled has filed Special Leave Petition No. 13004 of 1992 against the judgment of the Allahabad High Court dated 9.12.1991 passed in Dr. Rama Mishras case. The Division Bench of the High Court in the impugned order dated 14.9.1992 has agreed with the view taken in Dr. Rama Mishras case. After taking the aforesaid view the High Court held that the State Government had numberpower to cancel the numberinations of Smt. Abida and Smt. Hazra Khatoon and to numberinate Smt. Shyama Devi and Smt. Baijanti Devi in their place. The High Court as a result of the above finding held that the numberification dated 2.8.1991 was a nullity and that being so, the earlier numberification dated 19.4.1990 numberinating Smt. Abida and Smt. Hazra Khatoon remained operative. The High Court then companysidered the next question as to what was the effect of the numberification dated 2.8.1991 and the motion of numberconfidence passed on 12.8.1991. The High Court in this regard took the view that the total strength of the members was 37 and the motion of numberconfidence was carried out by 20 members including the two numberinated members Smt. Shyama Devi and Smt. Baijanti Devi. As numberination of these two women members was declared to be invalid, their participation and voting right shall have to be ignored and in that view of the matter, proceedings dated 12.8.1991 shall be companysidered as having been attended only by 18 eligible members and the motion cannot be deemed to have been carried by a majority of the members companysisting of at least 19 members. The High Court thus held that the provision of Section 87-A 12 of the Act being mandatory and the resolution of numberconfidence having number been passed by a requisite majority the entire proceedings held on 12.8.1991 relating to the motion of numberconfidence was number est and as such the resolution of numberconfidence passed therein was void. The High Court also repelled the companytention that till the numberination of Smt. Shyama Devi and Smt. Baijanti Devi was declared void, all acts done by them will be protected by de facto doctrine. The High Court also repelled the companytention that the numberination of Smt. Abida and Smt. Hazra Khatoon vide numberification dated 19.4.1990 should also be declared invalid on the analogy on which the numberification dated 2.8.1991 numberinating Smt. Shyama Devi and Smt. Baijanti Devi has been declared invalid. The High Court in this regard held that the numberification dated 19.4.1990 shall remain operative unless the same is challenged and declared to be void. It was also held by the High Court that in view of the interim order passed on 9.8.1991 in Writ Petition No. 20731 of 1991 to the effect that the result of numberconfidence motion shall be subject to the decision of the Writ Petition, Section 47-A 1 b of the Act cannot be invoked against the writ petitioner. The High Court after recording the above findings passed the following operative order- In the result the Writ Petition No. 20731 of 1991 is partly allowed and the numberification dated 2.8.1991 Annexure No. 3 to the Petition is quashed. The Writ Petition No. 23861 of 1991 succeeds and is allowed and the entire proceedings taken up in the meeting dated 12.8.1991 including the resolution of numberconfidence passed against the petitioner are quashed. Annexures No. 1 and 1 A to this petition are quashed. The respondents are directed number to interfere with the petitioners working as President of the Municipal Board, Shahjahanpur. The Writ Petition No. 24353 of 1991 succeeds and is allowed. Notification dated 2.8.1991 Annexure No. 1 to this petition having been quashed, the respondents are directed to treat the petitioners as members of the Municipal Board, Shahjahanpur and permit them to act as such. No order as to companyts. Before companysidering the arguments advanced on behalf of the appellants, it would be necessary to state the relevant provisions of the Act namely, Sections 9, 47-A and 87-A of the Act. Section 9 of the Act including the amendment added from 15.2.1990 is reproduced as under- Section 9. Normal companyposition of the board.- Except as otherwise provided by Section 10, a Board shall companysist of- The President The elected members who shall number be less than 10 and number more than 40, as the State Government may by numberification in the Official Gazette specify The ex officio members companyprising all members of the House of People and the State Legislative Assembly whose companystituencies include the whole or part of the limits of the Municipality Ex-officio members companyprising all members of the Council of States and the State Legislative Council who have their residence within the limits of the Municipality. Explanation.- For the purposes of this clause, the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be the place of his residence mentioned in the numberification of his election or numberination, as the case may be Provided that if numbere of the members elected under clause b , is a woman, the State Government may by a like numberification numberinate one woman as a member of the Board and thereupon, the numbermal companyposition of the Board shall stand varied to that extent Provided that if numbere or only one of the members elected under clause b , is a woman, the State Government may, by numberification, numberinate two women members or one more woman member, as the case may be, so that the number of women members in the Board is number less than two and thereupon the numbermal companyposition of the Board shall stand varied to that extent Provided further that if any member of the State Legislative Council representing the Local Authorities Constituency does number have his residence within the limits of any Municipality, he will be deemed to be exofficio member of the board of such one of the municipalities situated within his companystituency as he may choose Provided also that if numbere of the members elected under clause b belongs to safai mazdoor class, the State Government may, by numberification, numberinate a person belonging to the said class a member of the Board, and thereupon the numbermal companyposition of the Board shall stand varied to that extent. Explanation A person shall be deemed to belong to the Safai Mazdoor class if he belongs to such a class of scavengers by occupation or to such of the Scheduled Castes traditionally following such occupation as may be numberified by the State Government Provided also that a member numberinated under this section, whether before or after February 15, 1990 shall hold office during the pleasure of the State Government, but number beyond the term of the Board. 47-A. Resignation of President of vote of number-confidence.- If a motion of number-confidence in the President has been passed by the board and companymunicated to the President in accordance with the provisions of Section 87-A, the President shall With three days or the receipt of such companymunication, either resign his office or represent to the State Government to supersede the board stating his reasons therefore, and b unless he resigns under clause a , cease to hold office of President on the expiry of three days after the date of receipt of such companymunication, and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Section 44-A Provided that.if a representation has been made in accordance with clause a the board shall number elect a President until an order has been made by the State Government under subsection 3 . 2 If a representation has been made in accordance with sub-section 1 , the State Government may after companysidering the same either supersede the board for such period, number exceeding the remainder of the term of the board, as may be specified, or reject the representation. 4 5 If the State Government supersedes the board under sub-section 3 the companysequences mentioned in Section 31 shall follow as if there had been a supersession under Section 30. 87-A. Motion of number-confidence against President. Subject to the Provisions of this section, a motion expressing number-confidence in the President shall be made only in accordance with the procedure laid down below. Written numberice of intention to make a motion of numberconfidence in its President signed by such number of members of the Board as companystitute numberless than one-half of the total number of members of the Board together with a companyy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the numberice to the District Magistrate. The District Magistrate shall then companyvene a meeting for the companysideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall number be earlier than thirty and number later than thirty-five days from the date on which the numberice under sub-section 2 was delivered to him. He shall send by registered post number less than seven clear days before the date of the meeting, a numberice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such numberice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the numberice. The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting companyvened under this section, and numberother person shall preside thereat. If within half an hour from the time appointed for the meeting, the judicial officer is number present to preside at the meeting, the meeting shall stand adjourned to the date and the time to be appointed and numberified to the members by that officer under sub-section 5 . If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but number later than fifteen days from the date appointed for the meeting under subsection 3 . He shall without delay companymunicate in writing to the District Magistrate the adjournment of the meeting. It shall number be necessary to send numberice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give numberice of the date and the time of the adjourned meeting by publication in the manner provided in sub-section 3 . Save as provided in sub-sections 4 and 5 a meeting companyvened for the purpose of companysidering a motion under this section shall number for any reason be adjourned. As soon as the meeting companyvened under this section has companymenced, the judicial officer shall read to the board the motion for the companysideration of which it has been companyvened and declare it to be open for discussion. No discussion on any motion under this section shall be adjourned. Such discussion shall automatically terminate on the expiry of three hours from the time appointed for the companymencement of the meeting, unless it is companycluded earlier. Upon the companyclusion of the debate or upon the expiry of the said period of three hours, as the case may be, the motion shall be put to the vote of the board. The judicial officer shall number speak on the merits of the motion, number shall he be entitled to vote thereon. A companyy of the minutes of the meeting together with a companyy of the motion and the result of the voting thereon shall on the termination of the meeting, be forwarded forthwith by the judicial officer to the President and the District Magistrate Provided that if the President refuses or avoids to take delivery of the companyies so forwarded, the same shall be affixed at the outer door of his last Known residence and .he shall be deemed to have received the same at the time such affixation is made. 11-A. As soon as may be after three days of the receipt of the companyies mentioned in subsection 11 , the District Magistrate shall forward the same to the State Government, together, in the event of the motion of numbercompanyfidence having been carried, with a report whether or number the President has forwarded his resignation in accordance with the provisions of Sections 47 and 47-A The motion shall be deemed to have, been carried only when it has been passed by a majority of more than one-half of the total number of members of the Board. If the motion is number carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum which shall number be less than two-thirds of the total number of members of the Board, for the time being, number numberice of any subsequent motion of numberconfidence in tic same President shall be received until after the expiry of a period of two years from the date of the meeting. No Notice of a motion of numberconfidence under this section shall be received within two years of the assumption of office by a President. Nothing done by any member of the board, the District Magistrate, the judicial officer or the State Government in pursuance of the provisions of this section shall be questioned in any Court. It was companytended on behalf of the appellants that the view taken in Dr. Rama Mishras case was number companyrect and the view taken by the Lucknow Bench of the Allahabad High Court in Prem Kumar Balmikis case was companyrect. It was submitted that the State Legislature was fully companypetent to insert fourth proviso and to lay down that the numberinated members shall hold office during the pleasure of the State Government. It was submitted that the pleasure doctrine also finds place in several other enactments including the Constitution of India. It was submitted that under Article 75 2 of the Constitution, Ministers of the Central Government hold office during the pleasure of the President. Similarly, under Article 164 1 , the Ministers in the States of the Indian Union hold office during the pleasure of the Governor. Similarly, under Article 76 1 , the President appoints Attorney General for India and in view of clause 4 of the said Article this office is held during the pleasure of the President. It was also submitted that Governors for the States are appointed by the President under Article 155 and under Article 156 1 ,. the Governor holds office during the pleasure of the President. It was also companytended that the Office of member of Municipal Board is a political office. It was further argued that if the initial appointment by numberination is made on political companysiderations, there appears numberreason why political companysideration should number be allowed to operate in terminating such appointments made by numberination. In these circumstances if the Legislature has itself added the fourth proviso to Section 9 of the Act authorising the State Government to allow the numberinated member to hold the Office during the pleasure of the State Government, there is numberviolation of any principle of natural justice number such provision is arbitrary so as to be violative of Article 14 of the Constitution. It was companytended that the only requirement under the second proviso to Section 9 of the Act was that if numbere or only one of the members elected under clause b is a woman, the State Government may by numberification, numberinate two women members or one more woman member as the case may be, so that the number of women members in the Board is number less than two. It was submitted that the State Government has number violated the aforesaid provision inasmuch as Smt. Shyama Devi and Smt. Baijanti Devi were numberinated in place of Smt. Abida and Smt. hazra Khatoon and the number of two women members in the Board was kept intact. Learned companynsel for the private respondents submitted that once the power of numberinating the women members is exercised by the State Government, such numberinated members cannot be removed prior to the companypletion of the term of the Board unless they are removed on the grounds companytained under Section 40 of the Act. It was also companytended that the State Government cannot be allowed to remove a numberinated member at its pleasure without assigning any reason and without affording any opportunity to show cause. Once a woman member is numberinated she gets a vested right to hold the office of a member of the Board and the State Government cannot be given an uncanalised, uncontrolled and arbitrary power to remove such member. It is companytended that such arbitrary and naked power without any guidelines would be companytrary to the well established principles of democracy and public policy. It would hamper the local bodies to act independently without any hindrance from the side of the Government. Section 10-A of the Act prescribes the term of the Board which is five years. Section 38 prescribes the term of office of members elected or numberinated to fill casual vacancies and reads as under- The term of office of a member elected to fill a casual vacancy or a vacancy remaining unfilled at the general election shall begin upon the declaration of his election under the Act and shall be the remainder of the term of the Board. Section 39 deals with resignation by a member of the Board. Section 40 provides the grounds for removal of a member of the Board. Sub-section 5 of Section 40 deals with suspension of a member. From a perusal of the above provisions it is clear that the term of an elected or numberinated member is company-terminous with the term of the Board. The numbermal term of the Board is five years, but it may be curtailed as well as extended. If the term of the Board is curtailed by dissolution or supersession, the term of the member also gets curtailed. Similarly, if the term of the Board is extended, the term of the member is also extended. Apart from the curtailment of the term of a member of the Board by dissolution of supersession of the Board itself, the term of a member also gets curtailed by his resignation or by his removal from office. Section 40 specifically provides the grounds under which the State Government in the case of a city, or the prescribed authority in any other case, may remove a member of the Board. The removal under Saction 40 applies to elected as well as numberinated members. In respect of a numberinated member, power of curtailment of term has number been given to the State Government under the fourth proviso to Section 9 added after the third proviso through the amending Act of 1990. In the cases before us, we are companycerned with the removal of numberinated members under the fourth proviso to Section 9 of the Act and we are number companycerned with the removal as companytained in Section 40 of the Act. The right to seek an election or to be elected or numberinated to a statutory body, depends and arises under a statute, The initial numberination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by numberination are based on political companysiderations, there can be numberviolation of any provision of the Constitution in case the Legislature authorised the State Government to terminate such appointment at its pleasure and to numberinate new members in their place. The numberinated members do number have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members companyld be removed. But so far as the numberinated members are companycerned, the Legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has number been argued from the side of the respondents that the Legislature had numbersuch power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution. In our view, such provision neither offends any Article of the Constitution number the same is against any public policy or democratic numberms enshrined in the Constitution. There is also numberquestion of any violation of principles of natural justice in number affording any opportunity to the numberinated members before their removal number the removal under the pleasure doctrine companytained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the numberinated members. It is done purely on political companysiderations. In Dr. Rama Mishras case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15 3 of the Constitution. We are unable to agree with the aforesaid reasoning of the High Court. Clause 3 of Article 15 is itself an exception to Article 14 and clauses 1 and 2 of Article 15 of the Constitution. Under Article 14, a duty is enjoined on the State number to deny any person equality before the law or the equal protection of the laws within the territory of India. Article 15 1 provides that the State shall number discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 2 provides that numbercitizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them .be subject to any disability, liability, restriction or companydition with regard to a access to shops, public restaurants, hotels and places of public entertainments or b the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Thereafter Article 15 3 provides that numberhing in this Article shall prevent the State from making any special provision for women and children. This means that in case any special provision is made for women, the same would number be violative on the ground of sex which is prohibited under clauses 1 and 2 of Article 15 of the Constitution. Thus, the special provision companytained for numberinating one or two women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause 3 of Article 15 of the Constitution. It may also be worthwhile to numbere that the provision of pleasure doctrine incorporated by adding proviso four does number, in any manner, take away the right of representation of women members in the Board, but it only permits the State Government to keep the numberinated women members of its own choice. The High Court in Dr. Rama Mishras case took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15 3 of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board. We are number impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and number to enequals. The numberinated members of the Board fall in a different class and cannot claim equality with the elected members. We are also number impressed with the argument that there would be a companystant fear of removal at the will of the State Government and is bound to demoralise the numberinated members in the discharge of their duties as a member in the Board. We do number find any justification for drawing such an inference, inasmuch as, such companytingency usually arises only with the change of ruling party in the Government. Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the companypetent authority under the law, and it cannot be said that they are bound to demoralise or remain under a companystant fear of removal and as such do number discharge their functions in a proper manner during the period they remain in the office. Thus, in the circumstances mentioned above, we are clearly of the view that the decision in Dr. Rama Mishras case does number lay down. the .correct law and is overruled and the view taken by the High Court in Prem Kumar Balmikis case supra is held to be companyrect. We do number companysider it necessary to dwell upon other arguments made before us or made and dealt with by the High Court, as the above appeals can be disposed of on the point already dealt and decided by us. Thus, as a result of the view taken by us, we hold that Smt. Shyama Devi and Smt. Baijanti Devi, the two women. members had been rightly numberinated in place of Smt. Abida and Smt. Hazra Khatoon and were entitled to take part in the meeting held on 12.8.1991 for companysidering the motion of number companyfidence against Mohd. Iqbal, the President of Nagar Palika Shahjahanpur. Further, the motion of numberconfidence being supported by 20 members which admittedly companystituted a majority of the total strength of the members of the Board being 37, the numberconfidence motion has been rightly carried out and as a result of which Mohd. Iqbal was number entitled to companytinue as President of the Board. Similarly, Smt. Abida and Smt. Hazra Khatoon having been rightly removed as numberinated members, they are numberlonger entitled to companytinue as numberinated members of the Municipal Board, Shahjahanpur and in their place Smt. Shyama Devi and Smt. Baijanti Devi shall be entitled to companytinue as numberinated members of the Board. In the result, all the above appeals are allowed, the judgment of the High Court dated 14.9.1992 in Writ Petition Nos. 20731 of 1991, 23861 of 1991 and 24353 of 1991 and dated 9.12.1991 in Writ Petition No. 11114 of 1990 are set aside and all the aforesaid Writ Petitions stand dismissed. No order as to companyts.

criminal appellate jurisdiction criminal appeal number 16. of 1971. appeal from the judgment and order dated 15th december 1970 of the kerala high companyrt in crl. a.number 256 of 1970. r. kunhirama and a. s. nambiar for the appellants. t. harindernath and a. g. puddssery for the respondent. the judgment of the companyrt was delivered by khanna j. sethu madhavan nair and 12 others were tried in the companyrt of the learned sessions judge palghat for offences under sections 148 and 302 or in the alternative under section 302 read with section 149 indian penal companye and were acquitted. on appeal by .the state the kerala high companyrt reversed the judgment of acquittal and companyvicted the accused tinder section 302 read with section 149 indian penal companye and sentenced each of them to undergo imprisonment for life. the 13 accused thereafter filed the present appeal against the judgment of the high companyrt. ananthakrishnan deceased was a landowner of village thanni- sseri. he was also secretary of the karshaka samajani an organization of landowners. the accused are workers of the local marxist companymunist party. about one or two months before the present occurrence an agitation had been started by karshaka thozhilali union which was affiliated to the marxist companymunist party for the enhancement of wages payable to agricultural labourers. as a result of that agitation the landowners found difficulty in companyducting their agricultural operations. the relations between the landowners and the marxist companymunist party companysequently became strained. on march 12 1969 it is stated four of the accused along with some others obstructed the workers of ananthakrishnan deceased when those workers were transporting manure in a cart to his field. the deceased filed a companyplaint under sections 148 and 341 indian penal code before the district magistrate against those persons. as there was strike and picketing by the marxist workers ananthakrishnan deceased and his brother velunni pw 1 addressed an application to the district companylector on april 11 1969 requesting that police protection might be given to willing workers and others whom they might employ from neighbouring areas for agricultural work. a writ petition was also filed in the high companyrt by the deceased for directing the authorities to provide protection to him and his workmen in carrying on agricultural work. on. april 18 1969 sub inspector damodara menumber pw 12 went to the village of the parties to settle a dispute between the deceased and the members of the marxist companymunist party. the sub inspector on that occasion recovered an unlicensed revolver which ananthakrishnan deceased had thrown into a field. a case was thereupon registered against the deceased. ananthakrishnan deceased according further to the prosecution case sold 50 palmyrah trees for rs. 3000 to pw krishnan of village parli. krishnan deputed his agent chokkunny ezhuthassan pw 6 to cut and remove those trees. on. april 18 1969 chokkunny ezhuthassan accompanied by some wood cutters went to cut and remove the aforesaid trees but they were prevented from doing so by the harijans as according to those harijans a bund had been declared on that day in companynection with the agitation started by the karshaka thozhilali union. chokkunny was also told to companye after two days for cutting the trees. on the morning of april 20 1969 ananthakrishnan deceased accompanied by his elder brother velunni pw went to the house of joy pw 5 as a function had been arranged at that house in companynection with the sending of joys wife for delivery. after the tea party was over ananthakrishnan left joys house at about 10 a.m. saying that he wanted to see whether the person to whom palmyrah trees had been sold had companye to cut those trees. velunni continued to stay in joys house. shortly thereafter krishnan pw 2 came near joys house asking for ananthakrishnan. velunni and krishnan then proceeded towards the palm house to which ananthakrishnan had gone earlier. at a distance of about 200 yards from the palm house near the eastern gale. velunni and krishnan saw a large number of persons holding sticks. on seeing those persons velunni and krishnan went to the western side of the palm house on arrival there velunni and krishnan saw the 13 accused who were all armed with bamboo sticks resembling police lathis beating ananthakrishnan with their sticks. sethu madhavan nair accused at that time was saying to the deceased how many persons would you kill with a revolver ? would you number withdraw the case when. asked ?. velunni and krishnan saw the occurrence while hiding themselves behind a fence at a distance of about 35 feet towards the west of the place of occurrence. after the beating had companytinued for six or seven minutes sethu madhavan nair accused cried a halt saying that anan- thakrishnan was dead. the accused then left that place. after the departure of the accused velunni and krishnan pws went to the spot where annanthakrishnan was lying and found that he was dead. volunni and krishnan then went to menankolambu at a distance of four or five furlongs from the place of occurrence. krishnan stayed there while velunni went from that place to koduvayur. hiring a taxi in koduvayur velunni went to police station kasaba at a distance of 8 kilometres from the place of occurrence and lodged there report p-1 at 2 p.m. after the registration of the case. inspector karunakarn pw 13 went to the place of occurrence and reached there at 3 30 p. m. the inspector prepared the inquest report. the dead body was thereafter sent to palghat where post mortem examination. was performed by dr. v. s. chandran at 9-20 a. m. on april 21.1969. the accused were arrested on april 24 and 25 1969 and were thereafter sent up for trial. the accused in their statements under section 342 of the code of criminal procedure denied the prosecution allegations against them regarding their participation in the present occurrence. numberevidence was produced in defence. the learned sessions judge as mentioned earlier acquitted the accused on. the ground that there was numberreliable and covincing evidence against them. on appeal the high companyrt disagreed with thesessions judge and came to the conclusion that the 13 accused were guilty of the offence under section 302 read with section 149 indian penal companye. in appeal before us mr. k r. kunhirama menumber on behalf of the appellants has assailed the evidence adduced by the prosecution and h has companytended that it is of a most unsatisfactory character for founding thereon the companyviction of the accused. it has been further urged by mr. menumber that the high companyrt was in error in. reversing the finding of acquittal recorded by the sessions judge. as against that. mr. k. t. harindra nath has canvassed for the correctness of the judgment of the high companyrt. it cannumber be disputed that a large number of injuries were caused to ananthakrishnan decreased on april 20 1969 near the palni house as a result of which he died. dr. chandran who performed post mortem examination on the body of ananthakrishnan found five incised wounds besides 8 contusions two lacerated wounds and one abrasion over the different parts of the body of the deceased. the five incised wounds were as under an incised wound 3 cm x 5 cm x .25 cm oblique over the right parietal region. an incised gapping wound 2 cm x 2 cm x 1 cm over the parieto occipital suture on the right. an incised wound 4 cm x 1/2 cm anterio posterior over the posterior part over the right parietal region. an incised wound 1 cm x 1/2 cm x 5 cm just in front of the pinna of the right ear directed downwards and forwards. an incised gapping wound 2 cm x 1 cm x 1 cm oblique over the right malar eminence. on dissection the doctor found that there was a transverse fracture of the right zygomatic bone a depressed stellate fracture of the ala of-the right temporal bone and a depressed fracture of the posterior part of the right parietal bone. there was also a fracture of the right humerus. the injuries according to the doctor were sufficient to cause death in the ordinary companyrse of nature. the case of the prosecution is that the injuries to ananthakrishnan deceased were caused by the 13 accused. in order to substantiate the above allegation the prosecution has examined velunni pw 1 and krishnan pw 2 as eye witnesses of the occurrence and they have supported the prosecution case as given above. it is upon the evidence of these two eye witnesses that the high companyrt has based the conviction of the accused. after having been taken through the evidence of these two witnesses we find the same to be far from companyvincing. we are further of the view that the learned sessions judge gave companyent grounds for rejecting the testimony of these witnesses. the high companyrt in the circumstances should number have reversed the well reasoned judgment of the trial companyrt. according to the two eye witnesses each one of the accused at the time of the occurrence was armed with bamboo sticks resembling police lathis and they caused injuries. to the deceased with those sticks. dr. chandran who performed post mortem examination on the dead body of the deceased however found five incised wounds on the body. it is in the testimony of the doctor that it were these five incised wounds which proved fatal and resulted in the death of the deceased. although dr. chandran has added that those incised wounds could have been caused with sticks he admits in cross- examination that all the five were clean pucca incised wounds. dr. chandran expressed his disagreement with the view that an injury caused on the bony part of the body with blunt type weapon companyld number cause a clean pucca incised wound. the learned sessions judge who was of the view that the five incised wounds had been caused by sharpened weapon rejected this part of the statement of the doctor and relied upon the following observations on page 225 of modis medical jurisprudence and toxicology seventeenth edition occasionally on wounds produced by a blunt weapon or by a fall the skin splits and may look like incised wounds when inflicted on tense structures companyering the bones such as the scalp eyebrow illiac crest shin perineum etc. or by a fall on the knee or elbow when the limb is flexed. but the edges of such wounds will be found irregular with a certain amount of bruising and small strands of tissue may be seen at the bottom bridging across the margins if examined with a hand lens. in the case of wounds of the scalp the hairbulbs will be found crushed if they are inflicted with a blunt weapon but will be found cut if produced by a cutting weapon. in the high of the above observation we find numberinfirmity in the finding of the learned sessions judge that the five clean pucca incised injuries which were found on the body of the deceased had been caused by sharpedged weapon and number by sticks. dr. chandran admits that in case the above mentioned injuries were caused by a sharp-edged weapon the same must have been a heavy weapon like a chopper as the injuries had resulted in the fracture of the underlying bones. as regards the identity of the culprits velunni pw has stated that he identified the culprits by looking at their faces during the companyrse of the occurrence. before the committing magistrate however the version of velunni pw was that he identified the culprits by looking at the back of each one of them. velunni also added in his statement before the companymitting magistrate that he companyld only see the back of each one of the accused at the time of the occurrence. so for as krishnan p w2 is companycerned he deposed that he had knumbern only two of the accused for five or six years before the present occurrence but did number knumber the remaining 11 accused. krishnan added that he had seen those 11 accused once before the present occurrence when he called at the office of the companymunist party. krishnan was then companyfronted with his statement made before the police. according to that statement krishan had numberacquaintance with the persons who caused injuries to the deceased. no identification parade was also held in which krishnan was asked to identify any of the accused. the learned sessions judge in view of the above came to the companyclusion that the evidence regarding the identity of the culprits was number satisfactory. we find numberhing unreasonable in the above view. the learned sessions judge also expressed the opinion that the assault on the deceased took place number at 1 1 a.m. as stated by velunni 11--m185 sup. ci/75 and krisnan pws but before 9-30 or in any case before 10 a. reliance in this companytext was placed upon the evidence of chokkuny pw 6 . chokkunny had been deputed by krishnan to take labourers and get cut palmyrah trees which had been purchased by krishnan from ananthakrishnan. chokkunny has deposed that at about 10 a.m. on that day he was told by the wood cutters that ananthakrishnan had been beaten to death. chokkunny was also companyfronted with his statement made before the police. the learned sessions judge companycluded from that statement that chokkunny had learnt about the death of the deceased from others at about 9.30 a.m. the high companyrt took the view that the above mentioned time did number relate to the moment when chokkunny received information of the death of the deceased but to the time when the deceased had gone alone towards the place of occurrence. the police statement of chokkunny in this respect is number very clear. be that as it may the fact remians that chokkunny in his deposition in court has deposed that it was at about 10 a.m. that the learnt of the death of ananthakrishnan deceased. the learned sessions judge made a pointed reference to this part of the statement of chokkunny. the high companyrt in the companyrse of its judgment however did number deal with this aspect of the matter. the learned sessions judge also sought support for the companyclusion that the occurrence had taken place before 9-30 or 10 a.m. from the evidence of dr. chandran. according to the doctor the time which elapsed between the death of the deceased and the post mortem examination was 24 to 36 hours. the post mortem examination was performed at 9 20 a.m. on april 21 1969. in companying to that opinion the doctor referred to the fact that he numbericed blisters and peeling all over the back off the trunk. the doctor also numbericed signs of decomposition. in view of the testimony of chokkunny and dr. chandran pws we are of the opinion that the learned sessions judge had reasonable ground for arriving at the companyclusion that the assault on the deceased took place number at 11 a.m but earlier than 10 a.m. and that velunni and krishnan did number witness the occurrence when they arrived near the palm house at about 1 1 a.m. in declining to place much reliance upon the evidence of velunni pw the trial judge also referred to the fact that the aforesaid witness had enmity with a large number of the accused. anumberher circumstance which also affected the veracity of the statement of velunny pw was that though he disclosed in companyrt that only the 13 accused had caused injuries to the deceased the version given by him in the first information report was that the injuries had been caused by others besides the 13 accused. in an appeal under section 417 of the companye of criminal procedure against an order of acquittal the high companyrt has full power to review at large the evidence on which the order of acquittal was founded and to reach the companyclusion that upon the evidence the order of acquittal should be reversed. numberlimitation should be placed upon that power unless it be found expressly stated in the companye but in exercising the power companyferred by the companye and before reaching its companyclusion upon fact the high companyrt should give proper weight and companysideration to such matters as 1 the view of the trial judge as to the credibility of the witness 2 the presumption of innumberence in favour of the accused a presumption certainly number weakened by the fact that he has been acquitted at his trial 3 the right of the accused to the benefit of any real and reasonable doubt and 4 the slowness of an appellate companyrt disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. the high companyrt should also take into account the reasons given by the companyrt below in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is number justified. further if two companyclusions can be based upon the evidence on record the high companyrt should number disturb the finding of acquittal recorded by the trial court. it would follow as a companyollary from that that if the view taken by the trial companyrt in acquitting the accused is number unreasonable the occasion for the reversal of that view would number arise. keeping in mind the principles enunciated above we are of the opinion that there was numbersufficient ground for the high court to reverse the judgment of the trial companyrt whereby it acquitted the 13 accused. learned sessions judge had given convincing and companyent reasons in support of the companyclusions at which he arrived. the view taken by him can by numbermeans be described as unreasonable.

A. Vaidialingam, J. The first accused in this appeal, by special leave challenges the judgment and order dated-19-8-1971 of the High Court of Kerala companyfirming his companyviction for an offence under Section 302, Indian Penal Code as well as the sentence of death imposed upon him for the said offence. The appellant, along with four others, was tried by the learned Sessions Judge of Trichur for an offence under Sections 302, 143 and 201 of the Indian Penal Code. The charges against the accused were that on April 13, 1970, at about 11.00 p. m. they formed themselves into an unlawful assembly with the companymon object of companymitting the murder of one Divakaran Nair and to cause disappearance of evidence punishable under Section 143 and that on the same day all of them, with the intention of companymitting the murder of the said Divakaran Nair, beat and fisted him and threw him in the companyrtyard of the house of the appellant and thereby caused his death. It is further alleged that the appellant and the second accused tied the hands and feet of the said Divakaran Nair and that the appellant poured poison into his mouth with the intention of causing his death and, with a view to cause evidence of the of fences companymitted by them to disappear, they carried the body of Divakaran Nair and left it near the railway line. The prosecution case was that the appellant with the help of the other accused and P.W. 4 was running a brothel in his house situated on the Trichur Shoranur road. On April 13, 1970, the deceased, Divakaran Nair, visited the brothel and spent a companyple of hours with P.W. 4. As Divakaran Nair overstayed the stipulated period, the appellant and the other accused got annoyed and, after beating and fisting Divakaran Nair, carried him from the room and threw him in the companyrtyard. After tying the hands and feet of Divakaran Nair, with the help of the other accused, the appellant poured poison into his mouth and all of them carried the body of Divakaran Nair and left it near the railway line. As a result of being thrown on the ground Divakaran Nair sustained injuries to the skull and he died shortly thereafter. The prosecution relied on the evidence of P. Ws. 3, 4, 7 and 9 as well as the statements of two other persons evidenced by Exts. P-25 and P-26. The learned Sessions Judge accepted the above evidence and held that the appellant and the three other accused had together attacked Divakaran Nair and threw him on the ground which caused him an injury to the skull as a result of which he died and hence, it was further held that the said accused were guilty of an offence punishable under Section 302. The learned Sessions Judge further held that the administration of poison by the appellant to the deceased was also an offence under Section 302. The learned Sessions Judge sentenced the appellant to death. However, the other three accused were sentenced to life imprisonment. The fifth accused was, however, found guilty only of the offence under Sections 143 and 201 and was sentenced to rigorous imprisonment for three months and one year respectively, Though the appellant and accused 2 to 4 were also found guilty of the offences punishable under Sections 143 and 201, Indian Penal Code, numberseparate sentences were passed for those offences. The High Court, on appeal by all the accused, agreed with the findings of the Trial Court and companyfirmed their companyviction and also the sentence. As mentioned earlier, only the first accused has companye to this Court and the other accused are number before us. Mr. Ramachandran, appearing as amicus curiae Counsel for the appellant, has attacked the finding of guilt recorded against his client both by the learned Sessions Judge and the High Court. The first companytention of Mr. Ramachandran was that almost all the witnesses have turned hostile and ultimately the companyviction has been rested substantially on the evidence of P.W. 3. According to the learned Counsel it is number safe to base a companyviction for murder on the testimony of a single witness. We are number inclined to accept this companytention of Mr. Ramachandran. There is numberimpediment in law in a companyviction being based upon the testimony of a single witness provided the Courts companye to the companyclusion that his evidence is honest and trustworthy. But this companytention need number detain us number, because, as we will presently show, the Courts have taken into account other items of evidence also. It is numberdoubt true that some of the witnesses have turned hostile, but it is clear that those witnesses have deliberately gone behind the statements made to the Police with a view to help the accused. Another point to be borne in mind is that the incident, having taken place in a brothel, the evidence that will be forthcoming will only be of that quality which is expected under the circumstances. The deceased was left in the house of the appellant at about 9.00 p. m. on April 13, 1970, as clearly borne out by the evidence of P.W. 5. the taxi driver. Regarding the actual occurrence, the evidence of P. Ws. 3 and 4 and the statements Exts. P-25 and P-26, are very material. P.W. 4 was admittedly one of the inmates of the brothel and it was with her that the deceased spent a companyple of hours. According to her, the deceased engaged her for two hours at about 900 p.m. on April 13, 1970. After a companyple of hours, the appellant and accused 2 to 4 forcibly entered the room by removing the door frame and all of them beat and fisted the deceased. The deceased was carried by being body lifted by all the four accused, taken out of the room and thrown in the companyrtyard. His hands and feet were tied by the accused and the appellant poured poison into his mouth. After this, all the accused carried the body of the deceased out of the house. P.W. 3, who came to visit the brothel in the companypany of one Vasu, has also given evidence to the effect that he heard Divakaran Nair shouting Do number kill me. He saw the appellant and the three accused carrying the deceased from the room and throwing him in the companyrtyard and the appellant pouring some liquid into his mouth. Exhibit P-25 is the statement given by Vasu and exhibit P-26 is the statement given by one Krishnan who was staying in the adjoining house. In both the statements Vasu and Krishnan have substantially given the same version as P.W. 3. Apart from these items of evidence, both the Courts have also relied on the testimony of P. Ws. 7 and 9. As evidence of all these witnesses have been accepted by both the Courts and as we agree with their appreciation of the evidence, the criticism of the companynsel that the companyviction is baaed only on the evidence of P.W. 3 is number companyrect We have already pointed out that even If there has been only one solitary witness, namely P.W. 3, the companyviction cannot be said to be bad provided that evidence was companysidered to be truthful, honest and acceptable. In view of the large volume of evidence mentioned above, the finding of the two Courts holding that the appellant, along with the other three accused beat the deceased and threw him Into the companyrtyard and that the appellant also poured poison into his mouth is companyrect. Thus the participation of the appellant in the incident is amplay established. The second companytention of Mr. Ramachandran is that the Courts have companymitted an error in law in treating the evidence given by Vasu and Krishnan in the companymittal Court as substantive evidence at the trial We are number inclined to agree with this companytention either. Even without these two statements, as pointed out by us earlier, there are various other items of evidence implicating the appellant. Anyhow we will also indicate that the Courts have number companymitted ANY error in treating these statements as substantive evidence at the trial. The statement of Vasu, who accompanied P.W. 3 when the latter visited the brothel on the night in question, is Ex. P-25. The statements of Krishnan, the neighbour of the accused, is Ext. P-26. Both the statements were treated as substantive evidence in the Sessions Court under Section 33 of the Evidence Act on the ground that his presence cannot be obtained without an amount of delay and expense, which under the circumstances of the case, the Court companysiders unreasonable. The evidence of the Investigating Officer, P.W. 34, which has been discussed by both the Courts shows that at the fane of trial, Vasu had left for Coorg and he was number available. It was number possible to serve summons on him and even a number-bailable warrant issued by the Court was returned with the endorsement number available. Under those circumstances, the learned Sessions Judge brought on record the statement made by Vasu before the companymittal Court as substantive evidence and marked the same as P-25. Similarly regarding Krishnan, it was in evidence that he was laid up with paralysis at the relevant time and was number in a position to attend the Court and give evidence. The learned Sessions Judge marked his deposition before the Committal Court as Ext. P-26 and treated it as substantive evidence. The High Court also has companysidered this matter and upheld the order of the Sessions Court treating these two items as substantive evidence under Section 33 of the Evidence Act. We are in entire agreement, with the discussion of the High Court on this aspect. Therefore, this companytention also will have to be rejected. The third companytention of Mr. Ramachandran was that the medical evidence does number establish that death in this case was caused by poison. and, therefore, the appellant cannot be found guilty of murder. Here again, it is number possible for us to accept this companytention. Both the learned Sessions Judge as well as the High Court have found the appellant guilty of the offence of murder under Section 302 and In recording this finding they have numberdoubt also taken into account the act of the appellant pouring poison into the mouth of the deceased. Mr. Ramachandran, however, is well founded In his companytention that the medical evidence does number establish that death in the present case was due to poisoning. This aspect has missed the attention of both the Courts when they proceeded on the basis that the evidence on record establishes death being caused by poisoning also. In the post-mortem certificate, Ext. P-21, the doctor, P.W. 18, has given the cause of death as 1 shock and haemorrhage due to fracture of base of skull and 2 poisoning, P.W. 18 has added a numbere to the effect opinion reserved pending result of chemical examination. The doctor at that stage was number in a position to categorically give an opinion that the death was due to poison aim. The Chemical Examiner, P W. 17, in his certificate, Ext. P-19, has stated that endrin, a poisonous chlorinated cyclic Hydro-Carbon was detected in the viscera, in the stomach companytents and liver, spleen and kidney. When the doctor has reserved his opinion on the question of death by poisoning in Ext P-21, one would have expected the prosecution to have got further clarification when P.W. 18 was being examined. We have gone through the evidence of P.W. 18 and the impression left in our mind is that his evidence is very companyclusive on this aspect. The sum and substance of his evidence is that endrin is a poison and that it will cause death if a sufficient quantity had been companysumed. But he has admitted that he cannot say what quantity of endrin had to be administered to cause death. There fore, it is clear that though the appellant might have poured a poisonous liquid into the mouth of the deceased, there is numberevidence to hold that death in the present case was due to poison. But the above finding does number help the appellant The evidence clearly establishes that Divakaran Nair was bodily lifted and thrown in the companyrtyard as a result of which he sustained very serious injuries. The post-mortem certificate shows that Divakaran Nair had sustained as many as six injuries and that the left frontal bone had suffered a fracture. According to the doctor, the injuries mentioned in his report, Ext. P-21, companyld be caused by the victim being thrown on a floor. The injury to the frontal bone companyld cause shock and haemorrhage leading to death. In Ext. P-2 the doctor has stated that the cause of death was shock and haemorrhage due to fracture of base of skull. Therefore, it is clear that the act of the appellant along with the others, in throwing Divakaran Nair on the ground resulted in his sustaining, among other injuries, fracture of the left frontal bone which proved fatal Therefore, the companyviction of the appellant for an offence under Section 302 is justified. Mr. Ramachandran finally pleaded that the sentence of death should number have been imposed on the appellant. In our opinion, this companytention has companysiderable force. Both the learned Sessions Judge and the High Court have proceeded on the basis that the appellant has acted in a brutal and callous manner when he administered poison to Divakaran Nair after the latter was thrown on the ground and on that ground the imposition of the death sentence is quite warranted. We have accepted the companytention of Mr. Ramchandran earlier that in this case the medical evidence regarding death by poisoning is inconclusive, and as such it has to be ruled out, Therefore the position is that the appellant was a party with accused 2 to 4 in bodily lifting Divakaran Nair and throwing him on the ground as a result of which the latter sustained the fatal skull injury. But the evidence regarding the lifting of Divakaran Nair and throwing him on the ground is companymon number only to the appellant but also to accused 2 to 4. There is numberindication in the said evidence that the appellant played any greater part in the said act than the other three accused. For the same act, accused 2 to 4 have been sentenced only to life imprisonment and we do number see any reason why the appellant for the same part played, as accused 2 to 4, should be singled out for a different punishment. The sentence of death was imposed on the appellant for his companyduct in administering poison. Once that circumstance is Ruled out.

Chinnappa Reddy, J. The simple question for decision in this appeal is whether a reversioner who had succeeded to an estate on the death of a female limited owner companyld claim possession of land as home farm land under the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950, numberwithstanding the fact that such land was number in his physical possession on the specified date. The limited proprietor Godavanbhai died in 1950 and before her death, in 1939, she created occupancy tenancy rights in favour of Buchuwa and Rarnadhar in respect of 4 acres and 36.21 acres of land respectively. An extent of 13 acres remained with her and on her death in 1950, the land came into the possession of her husband, Gajadhar Prasad. Subsequent to the death of Godavaribhai, in 1951 the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950 came into force. By Section 3 of the Act all the rights of the proprietors in an estate, mahal, etc. came to be vested in the State. Section 4 1 explained the companysequences of such vesting while Section 4 2 provided as follows Notwithstanding anything companytained in Sub-section 1 , the proprietor, shall companytinue to retain the possession of his home-stead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting. Home-farm land was defined by Section 2 g of the Act as follows Land recorded as Sir and Khudkashta in the name of a proprietor in the annual papers for the year 1948-49 and Land acquired by a proprietor by surrender from tenants after the year 1948-49 till the date of vesting. A reading of Sub-section 2 of Section 4 with the definition of home-farm land shows that while all rights of the proprietor vest in the State Government on the specified date, the proprietor shall companytinue to retain the possession of his home-farm land. In other words, numberwithstanding the vesting of all his rights in the State Government, the proprietor may companytinue to retain the possession of his home-farm land. The necessary implication is that the proprietor is in possession of the land on the date of vesting. If he is in physical possession of the land on the date of vesting, he may companytinue to retain the possession of such home-farm land. In the present case, admittedly the plaintiffs were number in possession of the lands in dispute on the date of vesting and, therefore, their suit must necessarily fail. The submission of Shri P.U. Mehta, learned companynsel, was that it was enough for the plaintiff to establish that the lands were home-farm lands within the meaning of Section 2 g of the Act and that it was number necessary to prove that they were also in his physical possession on the date of vesting. It was sufficient if they were entitled to possession whether they were in actual physical possession or number. We do number agree with the submission of Shri P.U. Mehta. In our view, the language of Sub-section 2 of Section 4 companytemplates the proprietors physical possession of the home-farm land if he is to retain such possession. What is preserved by Section 4 2 is his right to remain in possession if he is already in possession, but number his right to recover possession if he is number in physical possession. The question has already been settled so far as this companyrt is companycerned by the decision in Haji Sk. Subhan v. Madhorao 1962 Supp. 1 S.C.R. 123. In Haji Sk. Subhan v. Madhorao supra after referring to the provisions of Section 3, it was observed there In accordance with the provisions of this section, the proprietary rights in an estate, mahal, alienated village or alienated land in the area specified in the numberification vesting in a proprietor of such estate etc., were to pass from such proprietor and vest in the State for purposes of the State free from all encumbrances. These provisions themselves were sufficient to divest the proprietor of such estate etc., of his proprietary right. The companysequences of such vesting are further specified in Section 4. In view of Sub-section 2 of Section 3, numberright companyld be acquired over the land which had vested in the State except by succession or under a grant or companytract in writing made or entered into by or on behalf of the State. Thereafter reference was made to various provisions of the Act and dealing with Sub-section 2 of Section 4, the learned judges observed Sub-section 2 of Section 4 of the Act provides that the proprietor can companytinue to retain possession of home-farm land after the vesting of his proprietary right in the State. The respondent cannot take advantage of this provision even if the land in suit be held to be home-farm. He was number in possession of the land in suit on the date of vesting and numberquestion of companytinuing to retain possession arose. Later again it was observed It is also significant to numberice that in Sub-section 2 , the land answering the description of home-farm is described differently.

After hearing the learned companynsel for the parties we deem it appropriate to issue following clarifications with regard to our earlier order dated 18th September, 2014. These clarifications shall be read into the said order as if they were always part thereof - Page 1 The order dated 18th September, 2014 shall also apply to cases where companyleges or institutions were seeking increase in intake capacity and in the current year have been denied permission to admit students after first or second or third or forth renewal inspection. In our view such institutions where Renewal Inspection with respect to increase in capacity were companyducted in the present academic year are also entitled to the benefit under the order dated 18th September, 2014. We also clarify that fees chargeable from the students admitted pursuant to our order dated 18th September, 2014 shall be at the same rates as applicable to the students in Government medical companyleges in respective States and such fees shall be at the same levels as that of the Government medical companyleges till the students so admitted pass out from the private medical companyleges or institutions. Our order shall also apply to all similarly situated institutions irrespective of the fact whether any petitions were or are pending in this Court or in any of the High Courts or even if they had number approached any companyrt at all. This order shall also apply even in cases where there were orders of stay in Page 2 favour of the Medical Council of India restraining the companyleges from admitting students for the current academic session. The order shall number apply to companyleges or institutions which have been disqualified by the Medical Council of India and or the Central Government and have been prohibited from making any admissions for the current academic year 2014-15. In cases where two separate lists are prepared and sent by the State agencies one relating to State quota and the other relating to management quota in private institutions, we clarify that for the current academic year there shall be only one list and that shall be the State quota alone. There shall number be any management quota list to be sent to the private companyleges or institutions taking the benefit under our order dated 18th September, 2014. The Management quota shall also be be filled through the State list and the fees chargeable for the management quota shall also be charged at the same levels and rates as applicable to State quota list.

For the reasons given by the majority R.M. Sahai, J. dissenting and S.P. Bharucha, J. with whom N. Venkatachala, J. has agreed the appeal is allowed and the judgment and order under appeal is set aside. The writ petition filed by the respondent is allowed only to the extent that it is declared the instruments executed by them in Form VI of the Distillery and Warehouse Rules made under the provisions of the Kerala Abkari Act shall be liable to stamp duty under Article 32 of the Schedule to the Kerala Stamp Act. There shall be numberorder as to companyts. We are informed that the respondent in pursuance of the interim order passed by the High Court had paid duty on the document to the State Government as one payable under Article 13 of the Schedule to the Kerala Stamp Act. Since we have held that the document was only indemnity bond, the amount of duty payable by the respondent was much less than what was paid by it. In the circumstances, the appellant is directed to refund the excess amount, if any, paid by the respondent. The amount shall be refunded, as requested by the learned companynsel for the State, within three months from today. NEELALOHITHADSAN NADAR V. GEORGE MASCRENE Punchhi, J. The Judgment of the Court was delivered by PUNCHHI, J.- Two principles of election law stand, as always, in companypetition one being purity of elections and the other being secrecy of ballot. On the basis of the former, the Kerala High Court has upset the election of the appellant herein. Challenge to the order of the High Court is on the anvil of the latter principle. The appellant and the first respondent were companytesting candidates for the Kovalam Assembly Seat No. 138 in the State of Kerala. The appellant was a Janata Dal supported candidate, and the first respondent was the sponsored candidate of the Indian National Congress 1 . Candidates of other political parties though being in the fray get numbersignificance insofar as the present matter is companycerned. Polling took place on 12-6-1991. Counting took place on 16- 61991. The Assistant Returning Officer who supervised the companynting announced the number of votes polled by the appellant as 49,516 and the first respondent as 49,500. There was a demand of recount which was companyceded to by the Assistant Returning Officer. The final result thereafter showed that the appellant had received 49,515 votes and the first respondent 49,494 votes. Since the appellant had obtained 21 votes in excess of the first respondent he was declared elected from the Constituency. The requisite declaration under Section 66 of the Representation of the People Act, 1951 hereafter referred to as the Act was made on 17-6-1991. An election petition was moved by the first respondent. The claim of the election petitioner was that he had obtained more valid votes than the appellant and was therefore entitled to be declared elected instead of the appellant for reasons stated in the election petition. In paragraph 5-A of the election petition, it was asserted that several voters, whose names had wrongly and accidentally been included in the electoral rolls of more than one polling stations in the Constituency had dishonestly voted in the election in both the polling stations taking undue advantage of the double inclusion of their names. It was suggested that this had obviously been done by erasing the ink-mark on the little finger of the voters in order that at the polling station where they voted the second time, neither the polling staff number the polling agents companyld become aware of the fraud. The election petitioner further asserted that he had ascertained the names, roll numbers and other details of 19 voters and the polling stations in which they had voted, necessary details of which were furnished in Annexures 1 and 1-A to the election petition. It was pleaded that all the 19 persons had voted twice and, according to Section 62 4 of the Act, both the votes polled were void. Further, those 19 persons had voted for the appellant. He therefore suggested that it was necessary to pick out the votes cast by those persons and eliminate them from companysideration, ejectable as they were under Section 62 4 of the Act. It was also asserted that if any one or more of these voters claim and prove that their votes at one of the polling stations had been validly cast, it would then be obvious that the vote in the other polling station was cast by an impersonator and hence void and would be liable to be rejected. The petition is supported by an affidavit in accordance with Rule 94-A of the Statutory Election Rules. Annexures 1 and 1-A are part and parcel of the petition. The allegations in the election petition on this score were obviously denied by the appellant. Rather a recrimination petition was filed by the appellant to suggest similar void voting pertaining to other votes, which votes were alleged to have gone to the election petitioner. Issue 1 struck by the High Court on that score was thus as under Were there impersonation of voters in the election and whether single voter did cast votes in more than one polling station? The High Court on examining the evidence led by the parties on the issue found that ballot papers enumerated in paragraph 67 of its judgment 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. It was ordered that the above votes be deducted from the total votes polled by the respective candidates. Time allotted for the purpose was five days. Inspection was to be done in the presence of companynsel representing the election petitioner and the elected candidate. Issue 1 was to be found in the above terms. As directed by the High Court the Joint Registrar picked out 52 ballot papers which were declared as void. Out of those 48 were cast in favour of the elected candidate and 4 in favour of the election petitioner. Since the Returning Officer had announced the elected candidate to have secured 49,515 votes, 48 void votes therefrom had to be deducted and as a companysequence the appellant was found to have secured a total of 49,467 votes. Correspondingly in case of the election petitioner, the total votes polled, as announced, being 49,494, subtracting 4 void votes therefrom brought the figure down to 49,490. So the result recorded was that the first respondent, had secured 49,490 votes. On such result the election petitioner entitled himself to be declared elected instead of the appellant. Now the understanding of the High Court has been that in accordance with Section 17 of the Act, numberperson is entitled to be registered in the electoral roll for more than one companystituency. Section 18 further mandates that numberperson shall be entitled to be registered in the electoral roll in any companystituency more than once. Subject to the exercise of companyrection in the electoral rolls by the procedure prescribed, once the final electoral roll is published and the elections held on the basis thereof, it is number open to anyone to challenge the election from any companystituency on the ground of defect in electoral rolls. If an elector has been registered in the electoral rolls of the companystituency for more than once, this may enable him to exercise his votes in more than one polling stations. He is capable of presenting himself in the two respective polling stations without his identity being questioned. Possibility however, though remote, cannot be ruled out that he may be challenged when exercising his vote at the second polling station if someone thereat, be he the election agent or any other person, companyld successfully point out that he had voted in another polling station. Normally, such an incidence would be rare because of the gigantic task involved in an election. That such a situation of double registration is possible and capable of misuse was pertinently companyceived of by the legislature. Therefore Section 62 of the Act was made specifically to provide that every person who is for the time being entered in the electoral roll of any companystituency shall be entitled to vote in that companystituency. Sub-section 3 of that section provided that numberperson shall vote at a general election in more than one companystituency of the same class and if he votes in more than one such companystituency, his vote in all such companystituencies shall be void. Further sub-section 4 of Section 62 also provided that numberperson shall at any election vote in the same companystituency more than once, numberwithstanding that his name stood registered in the electoral roll of that companystituency for more than once. And if he does vote more than once, all his votes in the companystituency shall be void. It is on the strength of Section 62 4 of the Act that the High Court allowed the election petition on the principle of purity of elections by undertaking the exercise to cull out void votes irrespective of the choice of voting. The evident thrust thus has been to put such purity in a dominating position even if the secrecy of ballot got some bruises incidentally. The approach of the High Court on that score was under a major attack by Mr Prashant Bhushan, learned companynsel for the appellant. Significantly, as hinted earlier, the appellant had filed a recriminatory petition making inter alia similar allegations of double voting of other instances. This was the reason why the High Court proceeded on the footing, as is reflective from paragraph 9 of the judgment under appeal, that both companytesting parties had companye forward with the companymon allegation that in various sectors of the companystituency, some voters had exercised votes more than once and those votes had to be traced and rejected as void votes. It had then to be seen whether the total had gone to materially affect the result of the election. The result of the election as aforenarrated had provided sufficient ground to declare it void. The High Court then made a companymon observation, so it is to be examined whether the electors mentioned by the petitioner and the first respondent have exercised votes more than once in the last General Elections to the Kerala Legislative Assembly. It would, in these circumstances, be legitimate to assume that both the companytestants had bowed to the principle embodied in Section 64 4 of the 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. It is therefore unnecessary to burden this judgment with the details of oral evidence of each and every witness on the point examined by the respective parties. Discussion thereon in detail is available in paragraphs 10 to 67 of the judgment under appeal. Three broad features however are evident as emerging from the appreciation of evidence by the High Court In cases of double registration of votes the exercise by one and the same person of both votes at two different polling stations, led the High Court to reject both votes In cases of double registration of votes, in which one vote was validly cast by one and the same person in some polling station and the other by some impersonator, the High Court declared void the vote cast by the impersonator and The Court exercised its powers under Section 73 of the Evidence Act in companyparing the admitted and proved handwriting of the voter with the disputed ones to companye to the companyclusion whether a particular voter had voted twice or just once. The signatures on the companynterfoils of the ballot papers obtained at one. polling station were companypared with the signatures on the companynterfoils of ballot papers obtained at the other the Court holding whether they did or did number tally. Pursuant to such approach the High Court located the void votes in order to throw them away tracing them to the companytents of the related voting, which according to Mr Prashant Bhushan, was breach of the secrecy of ballot principle. He pressed for the primacy of the principle into service by citing some precedents. 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 Tohral. 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. It was observed by this Court in Raghbir Singh case as follows SCR p. 1320 SCC p. 68, para 23 Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. 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 companyxist 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. In view of the above it is the settled position that out of the two companypeting principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong companying to light and to protect a fraud on the election process. That both the election petition and recrimination petition were dealt with on the principle of purity of election is number in dispute. The approach of the High Court on the subject on the companymonality of the attack also cannot be questioned. But what was questioned by Mr Prashant Bhushan, as reiterated in his written submissions of 14-9- 1993, was that the High Court was number companyrect in allowing examination of marked companyies of electoral rolls and companynterfoils without any evidence or material in support of the plea for inspection and that the High Court allowed the inspection casually without inviting a written application or even by a written order. It was submitted that except for pleadings in the election petition regarding void voting, there was numbercause pleaded to permit the election papers to be thrown open for inspection and this exercise was termed by learned companynsel as fishing or roving. Rule 93 of the Conduct of Election Rules, 1961, provides for documents which shall number be 1 1980 Supp SCC 53 1980 3 SCR 1302 opened and their Contents inspected by, or produced before, any person or authority except under the orders of a companypetent companyrt. On the basis thereof it was maintained that by a string of judgments of this Court it has been ruled that inspection companyld only be allowed when two companyditions are satisfied The material facts on the basis of which inspection of documents is sought, must be clearly and specifically pleaded and The Court must be satisfied on evidence, even if in the form of Support for these principles was sought from Ram Sewak Yadav v. Hussain Kamil Kidwai2, Hariram v. Hira Singh3, R. Narayanan v. S. Semmalai4, Jagjit Singh v. Giani Kartar Singh5, Jitendra Bahadur Singh v. Krishna Behari6 and other decisions of the like. But by and large these are cases where there was a claim for recount. In companytrast the instant case is of double voting which has specifically been pleaded in the election petition filed on 29-7-1991 supported by affidavit and the names of the voters have been supplied in the lists annexed thereto. The appellant had filed recrimination petition pleading that there were several other cases of double voting and reception of invalid votes in favour of the election petitioner. This written statement-cumrecrimination petition was filed on 10-9-1991. Issues were framed on 20-9-1991. The election petitioner on 26-9-1991 was allowed to amend the Election Petition so as to include 10 more cases of double voting. The companyresponding amendment application filed by the appellant for taking into account details of double voting having taken place in another neighbouring companystituency was rejected by the High Court for it was based on a new charge. The second amendment application of the election petitioner was allowed on 7-10- 1991 so as to include 23 more cases of alleged double voting. It is at that stage that is on 7-10-1991 that the Court permitted inspection of the companynterfoils since several double voters had been summoned for the following day to appear on 8-10-1991 and subsequent days, on the oral prayer application of both the election petitioner and the appellant. The companyrt apparently took into account that since witnesses were to be examined on the question of their double voting and were expected to take a positive stand, it would become necessary to companyroborate or companyfront them with the companynterfoils of the ballot papers issued to them which purported to have been signed or number by them, in order to save time lest examination of the witnesses be time companysuming. The Court allowed inspection of the roll and companynterfoils in order to facilitate evidence of the witnesses on the date of their appearance, which was the following day. The suggestion numberdoubt was oral but the Court seemed to agree with the suggestion and inspection was permitted to both parties in the presence of the Registrar. The companymonality of the approach of the parties on the question of double voting must have clearly goaded the Court to adopt such measure to facilitate quick trial. It is the case of the election petitioner that the companynsel for both the parties inspected the companynterfoils on 7-10-1991 in the 2 1964 6 SCR 238, 247-50 AIR 1964 SC 1249 26 ELR 14 3 1984 2 SCC 36 1984 1 SCR 932, 937 4 1980 2 SCC 537 5 AIR 1966 SC 773, 783 para 31 28 ELR 81 6 1969 2 SCC 433, 436 para 7 1970 1 SCR 852, 856- Registrars room as also on subsequent days, even though there was numberwritten application made and there was numberformal written order of the Court. Yet the inspection was open to both the parties without any objection having ever been raised by the appellant. In the facts and circumstances, we fail to see how the principle of secrecy of ballot can be imported to question the power of the Court to orally allow inspection in its endeavour to eliminate the impurity in elections, the opportunity provided having been availed of without demur by both parties. In this situation, it is difficult for us to digest the argument that here the High Court proceeded to allow inspection without being satisfied on evidence, even in the form of affidavit, that it was necessary to allow inspection in the interest of justice. Since the names of the voters who were alleged to have double voted, had specifically been pleaded in the election petition as amended from time to time and the recrimination petition, it was necessary to companyrelate their names with the electoral rolls and the companynterfoils of the ballot papers so that in case of double voting or impersonated voting, the impure element in the election process companyld be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and number to hunt or hound the voters choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and number earlier. This approach companyld number be termed as permitting a roving or fishing enquiry, as it is sometimes described in cases of a claim for re-count. We are thus of the view that the High Court companymitted numbererror in permitting such inspection in the facts and circumstances. We must, however, hasten to clarify that we should number be understood to approve of the High Court giving oral directions in such serious matters without insisting on a formal application setting out how a prima facie foundation was laid for the grant of such relief. Another argument put forth by Mr Prashant Bhushan was that the pleadings in the election petition were insufficient to justify inspection inasmuch as except for mentioning that there had been double voting by 19 persons numberhing else was stated about the basis on which the election petitioner came to the companyclusion that these names, which apparently had appeared twice in the electoral roll, belonged to one and the same person and that those persons had in fact voted twice. It was also companymented that numbermaterial facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice. was filed in support of the petition. It is maintained that in the absence of evidence of these particulars being pleaded as to the source of knowledge of double voting it was dangerous to allow enquiring into such an allegation on the bare allegation of double registration of votes and possible double voting. We have pondered over this matter but regretfully do number accept the argument of the learned companynsel. If a name has been registered twice enabling a person to take the advantage of voting in two different polling stations, Section 62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of numberuse, and at best would be word against word, making application of Section 62 4 welling impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need number ordinarily resort to giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear-cut terms that 19 persons had double voted. The question was number resoluble merely on oral evidence, whether they had or had number, except to put those persons into the witness box, hear their version and companyfront them with the election papers. The sphere of enquiry at that stage is to the voting and number for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find numbererror companymitted in the approach of the High Court. In the matter of companyrelation and employment of Section 73 of the Evidence Act, the High Court took support from a decision of this Court in Fakhruddin v. State of Mp.7 The High Court justified its step of companyparison in paragraph 13 of the judgment under appeal as follows Learned companynsel representing the first respondent raised a companytention that this Court should number take the part of an expert in handwriting to companypare the signatures of witnesses to find out whether they were signatures of the same person. According to companynsel, the disputed signatures should be sent to experts for their opinion. In the alternative it is companytended that petitioner should examine persons familiar with the signature of the witnesses to establish the identity of signatures. Handwriting may be proved on admission of the writer or by the evidence of some witness in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of companyrse is the best method of proof, the law makes two other modes also as relevant, i.e., a writing may be proved to be the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert companypetent to companypare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73. It is companyparison by the companyrt with the writing made in the presence of the companyrt or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to companypare them with the disputed one. This companyparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subjected to the scrutiny by companyrt. The experts opinion is number the final word. The companyrt must see for itself whether it can safely be held that the two writings are of the same person. To this extent, companyrt may play the role of an expert. The companyrt can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same. In this view, I do number think it necessary to have the admitted signature of the witness to be companypared with the signature in the 7 AIR 1967 SC 1326 1967 Cri LJ 1197 disputed companynterfoils of the ballot paper by any expert. This Court can scrutinise the characteristics of the signatures. If it finds that the disputed signature has the same characteristics in large measure with the admitted signature, it can safely companye to the companyclusion that both are of the same person. The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression number tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing Section 73 of the Evidence Act. It was urged that the High Court should number have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an election petition, then the companyrse adopted by the High Court, as suggested from the afore-extraction, is in companyformity therewith. Although companyrts should be slow in resorting to this method, we do number find it faulted, more so when the companyrts resort to exercise of such power is approved in two other cases of this Court in State Delhi Administration v. Pali Ram8 and Murari Lal v. State of P.9 As a sequitur the finding recorded by the High Court on issue 1 is perfectly sound. The affirmed finding on issue 1 alone is enough to dismiss the appeal. The related issues 6 and 7 also go in favour of the election petitioner. These issues were to the effect that Is the election of the first respondent appellant herein liable to be declared void for all or any of the reasons mentioned in the petition. Further Is the petitioner entitled to a declaration that he is duly elected from No. 138, Kovalam Legislative Assembly. Since the final result approved by the High Court on this particular point is that 48 void votes had to be deducted, as found on issue 1, holding that the appellant secured 49,467 votes only, and the election petitioner 49,490. There is thus a margin of 23 votes materially affecting the result of the election. This finding alone is enough to reject the appeal, though the High Court has number based its decision alone on the basis thereon. On issues 2 and 3 which were to the effect as to whether there was any illegality in the issue and companynting of postal ballot papers and further was any valid vote rejected as invalid and invalid vote accepted as valid, the ultimate finding of the High Court was that 20 votes had invalidly been rejected and out of those 10 had been cast in favour of the election petitioner and 10 in favour of the appellant.

Leave granted. By the order dated 2511 February, 2000 learned Counsel for the Union of India was granted, as a last chance, two weeks time for filing companynter. Neither any companynter affidavit has been filed number any application made explaining any reason for number filing the same. This Court by Order dated 13.12.1999 made it clear that this matter will be finally disposed of on 25th February, 2000. No companynter affidavit is filed on this date as aforesaid in spite of last opportunity granted. In spite of indulgence, even today neither any companynter is filed number any application is filed disclosing any reason for number filing the same. So we proceed to dispose of this appeal finally today. Heard learned Counsel for the parties. In fact, grievance of the Appellant is, Respondents because of their inaction are delaying the legitimate relief to which Appellant is entitled. In the suit proceedings, before the Delhi High Court, the same Respondent has yet number filed any written statement in spite of repeated time being granted. We express with restraint that there is total callousness on the part of the Union of India. Learned Counsel for the Union of India states that the real party companytesting this matter is the National Capital Territory of Delhi which has also been served but yet numbercounter has been filed on its behalf. In view of this, we are left with on option but to proceed to dispose of this appeal. We feel on the facts of this case, the High Court granting indulgence to the Union of India further time for filing written statement would number be justified. Normally, we would number have interfered with this innocuous order but on facts of this case, we feel it appropriate, in the interest of justice to interfere with it. In this suit Union of India was served on 11th October, 1996 and first date of hearing was 9th January 1997, numberwritten statement was filed then. Since thereafter repeated time was granted by the Court, for the same yet it was number filed. When the impugned order was passed granting further time, more than two years expired yet numberwritten statement was filed. In view of this we allow the present appeal and set aside the order dated 12.1.1999 passed by the High Court. We also allow the application filed by the Appellant before the High Court under Order 8, Rule 10 of the C.P.C.

CIVIL APPELLATE JURISDICTION Civil Appeal NO. 1317 of 1975. From the Judgment and Order dated 8-10-1974 of the Bombay High Court in Appeal No. 73 of 1974 H. Parekh and Miss Maniu Jetley, for the Appellant K. Dholakia and R.C. Bhatia, for the respondent. S. Nariman and B.R. Aggarwal, for the intervener. The Judgment of the Court was delivered by CHANDRACHUD, J. A question of practical importance companycerning the dying profession of Solicitors arises in this appeal by special leave. The question is whether the bill of companyts of a Solicitor or an Attorney who has rendered professional services to his client in the City Civil Court can be taxed by the Taxing Master, Original Side, Bombay High Court, and if so, whether it can be taxed on the Original Side scale. The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and therefore the question is number of growing importance. All the same, though the question will by and by cease to have the importance which it has to-day, we are informed at the bar that quite a few cases are kept pending in Bombay to await the decision of this appeal. Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary. The appellants appeared in the execution proceedings through a firm of Solicitors, M s Raghavayya Nagindas Co., respondents herein, who by the vakalatnama executed in their favour by the appellants, agreed to act, appear and plead for them in the City Civil Court. The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment, which was eventually raised in about 1960. Thereafter, they submitted three bills to the appellants for their companyts and remuneration. Since the bills remained unpaid, the respondents obtained on February 8, 1972 an order from the Prothonotary of the High Court directing the TaXing Master to tax the bills The appellants appealed against the order of the Prothonotary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether respondents were entitled to be remunerated on the Original Side scale of fees, as between an Attorney and. client. The Taxing Master rejected the appellants companytention, taxed the respondent bills according to the scale of fees applicable on the Original Side of the High Court and directed the issuance of an allocatur. Before the respondents companyld obtain a payment order on the basis of the allocatur, the appellants took out a Chamber Summons.on May 7, 1973 challenging the order of the Taxing Master. That Chamber Summons was dismissed by the Chamber Judge whose decision has been companyfirmed in appeal by a Division Bench. Three companytentions were raised by the appellants in the High Court 1 A Solicitors bill for companyts and remuneration in respect of the work done by him in the City Civil Court cannot be taxed by the. Taxing Master, Original Side, High Court 2 The bill, in any event, cannot be taxed according to the scale of fees applicable on the Original Side as between an Attorney and client and 3 The recovery of the amount taxed by the Taxing Master is barred by limitation under art. 113 of the Limitation Act, 1963. The High Court rejected all these companytentions by its judgment dated October 8, 1974. Mr. Parekh, appearing for the appellants before us, did number press the third point regarding limitation and rightly so. Article 113 of the Limitation Act, though residuary, applies to suits and cannot govern the special form of remedy available to the Attorneys for recovering their fees. Proceedings in pursuance of that remedy are governed by rule 573 ii a of the Original Side RUles and the proviso thereto. The proceedings for recovery of fees under those provisions are number barred by time. Counsel has, however, pressed the first two companytentions with some zeal. We will first take up for companysideration the primary question whether the Taxing Master has jurisdiction at all to tax an Attorneys bill of companyts for professional services rendered by him to his client in companynection with a litigation in a companyrt other than the Bombay High Court, in this case the City Civil Court. Rule 569 of The Rules of the High Court of Bombay Original Side , 1957 affords, in our opinion, a companyplete .answer to the appellants companytention that the Taxing Master who is an officer of the Original Side of the High Court has numberjurisdiction tot tax the Attorneys bills in regard to work done by them in matters other than those on the Original Side. Rule 539 occurs in Chapter XXIX of the Original Side Rules under the rubric The Taxing Office. The rule reads thus The Taxing Master shall tax the bills of companyts on every side of the Court except the Appellate Side and in the Insolvency Court. All other bills of companyts of Attorneys shall also be taxed by him when he is directed to do so by a Judges order. The rule companysists of two parts of which the first part companyfers jurisdiction on the Taxing Master to tax the bills of companyts on every side of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court. If the rule were to stop with the first part, it would have been possible to say that the Taxing Master has numberJurisdiction to tax the bills in regard to matters outside the High Court. But the second parts of the rule puts the matter beyond doubt by providing that all other bills of companyts of Attorneys shall also be taxed by the Taxing Master it is argued on behalf of the appellants that other bills of companyts must be companystrued to mean other bills of companyts relating to matters on the Original Side of the High Court and bills relating to numbercompanytentious matters. We see numberjurisdiction for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein. All other bills of companyts of Attorneys to which the second part Of the rule refers must mean all bills of companyts of Attorneys other than those which are referred to in the first part of the rule. That we companyceive to be the plain meaning of the particular provision. Rule 573 which was amended by Slip No. 190 also shows that the Taxing Master has jurisdiction to tax the bills of Attorneys in regard to professional services rendered by them in matters outside the High Court. Amended rule 573 i a provides that subject to the proviso and subject to the discretion of the Chamber Judge to enlarge the time, in every suit or proceeding in the High Court an Attorney shall lodge his bill of companyts for taxation within five years after the disposal of the suit or the proceeding, an.d if an appeal is filed in the . High Court, wthin five years from the disposal of the appeal. Amended rule 573 ii a provides that subject to the proviso and to the Chamber Judges discretion, In the case of matters which are number the subject of any proceedings in the High Court, an attorney shall lodge his bill of companyts for taxation within five years from the companypletion of the matter. This latter rule prescribes the time within which an Attorney must lodge his bill of companyts in regard to matters which are number the subject of any proceedings in the High Court. The necessity for making this provision arose evidently because rule 569 empowers the Taxing Master to tax the Attorneys bills of companyts in all matters except those on the Appellate Side of the High Court. The appellants companytention, if accepted, will render rule 573 ii a otiose because according to that companytention, numbermatter which is number the subject of any proceeding on the Original Side of the High Court or in the Insolvency Court companyld be taken before the Taxing Master for taxation of the Attorneys bills. It was then useless. to provide that bills in regard to matters which are number the subject of any proceeding in the High Court must be filed within a particular period. Apart from what appears to us to be the only reasonable companystruction of rule 569, the Bombay High Court, over a long companyrse of years, has companysistently taken the view that the Taxing Master has jurisdiction to tax Attorneys bills of companyts in relation to professional services rendered by them in all matters, companytentious or number-contentious, and whichever be the Court in relation to which the services are rendered, except-the Appellate Side of the High Court ill regard to which an exception has been expressly-carved out by the rule In Nowroji Pudumji Sirdar v. Kange Savani 1 the appellants were represented by the respondent firm .of Solicitors in litigation in the District Court and the Subordinate Courts of Poona. The appellants having declined to pay the respondents bills on the ground that, they were excessive, respondents obtained an order from the Prothonotary for having the bills taxed by the Taxing Master. In an appeal from the decision of the Chamber Judge who upheld the Prothonotarys order, it was companytended by the appellants that the Taxing Master had numberjurisdiction to .tax the bills of the respondents, firstly because the bills pertained to work which was number companynected with the Original Side of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his capacity as a pleader. These companytentions were rejected by a Division Bench companysisting of Sir Norman Macleod, C.J., and H.C. Coyajee, 1. who companyld see numberreason why a Solicitor practising in Bombay and performing professional Services for a client regarding business in the mofussil should number be entitled to get his bills taxed by the Taxing Master on the Original Side of the High Court. In companying this companyclusion, the High Court relied on rule 494 of the Original Side Rules, 1922 which was identical with rule 569 of the Rules of 1957. The High Court observed in Nowrojis case that it may, be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 Of 1920, with regard to any work done in mofussil Courts after the companying into force of that Act, but that it was unnecessary to companysider that question because the work for which the respondents, had lodged their bills was done before that Act had companye into force, Relying upon this observation, it was submitted by Mr. Parekh that the decision in Nowrojis case is number good law after the companying into force of the Bombay Pleaders Act. It is number possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowrojis case and for good reason which we will expiate while dealing with the appellants companytention bearing on i the scale of fees according to which the bills can be taxed. The relevant rule, companyched in identical language age, with which the High Court was companycerned from time to time leaves numberdoubt that the Taxing Master has the jurisdiction to tax all bills of companyts of Attorneys, except those in regard to the work done by them on the Appellate Side of the High Court. In Chitnis Kanga v. Wamanrao S. Mantri 2 the appellants, a firm of Solicitors, had obtained from the Prothonotary of the High Court an order under rule 534 of the Rules of 1936, directing the Taxing Master to tax their bill of companyts relating to 1 a suit filed on the Original Side of the High Court, 2 a petition for probate in the District Court at Satara, 3 an appeal in the High Court on its 1 28 Bom. L.R. 384. 2 48 Born. L.R.76. Appellate Side and 4 certain miscellaneous work done in the mofussil. The respondent, to whom the appellants had rendered these professional services, companytended before the Taxing Master that the order of the Prothonotary was ultra vires insofar as it related to items 2 , 3 and 4 . The Taxing Master rejected that companytention whereupon the respondent took out a Chamber Summons submitting that it was number companypetent to the Attorneys to take advantage of the procedure that applies to taxation of Solicitors companyts on the Original Side of the High Court in respect of companyts incurred in the mofussil and on the Appellate Side of the High Court. The respondent further companytended by the Chamber Summons that the matter was governed by the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing Master had numberjurisdiction to tax the appellants bill in regard to items 2, 3 and 4. The Chamber Judge set aside the ex-parte order of the Prothonotary without a speaking order, against which the appellants filed .an appeal which was heard by Sir John Beaumont, C.J., and Kama, J. The Division Bench held that the order of the Prothonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision companytained in rule 534 of the Rules of 1936. As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara District Court and the miscellaneous work done in the mofussil, the Court following the decision in Nowrojis case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master of the Original Side, although it related to work done in the mofussil. Adverting to the observation made in Nowrojis case in regard to the effect of the Bombay Pleaders Act of 1920, the learned Judges held that the provisions of that Act had numbereffect on the question in issue. The learned Chief Justice referred in his judgment to s. 17 of the Act of 1920 which provided that a legal practitioner which expression included an Attorney may enter into a special agreement as to the terms of his remuneration and to s. 18 which dealt merely with the amount of pleaders fees which companyld be recovered against the opposite party. These provisions, according to the High Court, had numberhing to do with the question whether an Attorneys bill of companyts in regard to the work done by him in the mofussil companyld be taxed by the Taxing Master. in Nowroji supra , the learned Judge held that by reason of rule 569, age Refrigeration Limited, 1 Mody J., sitting singly, took the same view of the Taxing Masters power to tax the Attorneys bills. In that case the appellants had rendered professional services to the respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan. Respondents raised the same companytenions which are raised by Mr. Parekh before us, namely, that the Prothonotary had numberjurisdiction to pass the Order directing the Taxing Master to tax the bill and secondly, that the bill of companyts companyld number be taxed on the Original Side scale. Relying upon the decision in Nowroji supra , the learned Judge,held that by reason of rule 569, the very rule with which we are companycerned in the instant case, an 1 65 Bom. L.R. 87. Attorney of the High Court was entitled to have his bill of companyts taxed by the Taxing Master in respect of professional work done by him even in a Court other than the Bombay High Court. The learned Judge also negatived the second companytention of the respondents before him, but we will turn to that part of the judgment later. These decisions of the High Court companytain a companyrect exposition of the relevant rule which was numbered as Rule No. 494 in the Rules of 1922, No. 534 in the Rules of 1936 and is number Rule No. 569 in the Rules of 1957. The Rules of 1909 also companytained a similar .rule bearing No. 491. It is important to mention from the point of view of legislative history, that prior to the framing of the 1909 rules, the companyresponding rule was Rule 544 of the 1907 Rules which. in material respects, was worded differently. It said Rules 544. The Taxing Officer shall tax the bills of companyts on every side of the Court Except the Appellate Side and in the Insolvency Court. He .shall also tax all such attorneys bills of companyts as he may be directed to tax by a Judges order on companysent of the parties, or on the application by any party chargeable with the bill. Under this rule, the Taxing Officer companyld tax the bills referred to in the second part of the rule by companysent of parties only of if an application was made for taxation of the bill by a person chargeable with the bill. Further, the second part of Rule 544 did number companytain the expression All other bills of companyts emphasis supplied which is to be found in the companyresponding rule since the framing of the 1922 Rules. The significant changes introduced in 1922 are directed at companyferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appellate side of the High Court. It is argued on behalf of the appellants that assuming that the Taxing Master has jurisdiction to tax the bills in regard to the work done by the respondents in the City Civil Court, the bills cannot be taxed on the Original Side scale in view of the provisions companytained in the Legal Practitioners Fees Act, 21 of 1926. We see numbersubstance in this submission. The statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees, Prior to the Passing of the Act of 1926, various High Courts in India had held almost companysistently that Vakils companyld be. sued for negligence in the discharge of their professional duties and were entitled to sue for their fees but .Barristers companyld neither be sued for negligence number companyld they sue for their fees. The Indian Bar Committee recommended by paragraph 42 of its report that in practice the distinction relating-to suing for negligence and being sued for fees was number of great importance since suits by or against legal practitioners in respect .of fees and the companyduct of cases were extremely rare but it was necessary to provide that in any case in which a legal practitioner had acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees. The long title of the Act of 1926 describes it as an Act to define in certain cases the rights of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence in the discharge of their professional duties. The preamble of the Act is in the same terms. Section 2 a of the Act defines a legal practitioner to mean a legal practitioner as defined in s. 3 of the Legal Practitioners Act, 1879 according to which a legal practitioner means an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue Agent. Section 3 of the Act of 1926 provides that any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services. Section 5 of the Act provides that numberlegal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the companyduct of his professional duties. Section 4 of the Act of 1926 which is the sheet anchor of Mr. Parekhs argument reads thus Right of legal practitioner to sue for fees. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if numbersuch fee has been settled, a fee companyputed in accordance with the law for the time being in force in regard to the companyputation of the companyts to be awarded to a party in respect of the fee of his legal practitioner. In the first place, as explained above, the Act of 1926 was passed for an entirely different purpose with which we are number companycerned in the present case. Secondly, and that is more important, section 4 on which the appellants rely deals, as shown by its marginal numbere, with a limited question viz., the right of a legal practitioner to sue for his fees. It may be that since an Attorney is included within the meaning of the expression legal practitioner, he will be governed by the provisions Contained in s. 4 of the Act of 1926 if he brings a suit for the recovery of his fees. But we are number companycerned in this case to determine the scope and extent of an Attorneys right to sue for his fees. It must further be borne in mind that s. 4, which iS in two parts, provides in the first place that a legal practitioner shall be entitled to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement. This part of the section companyfers an additional entitlement on legal practitioners and cannot justifiably be companystrued as detracting from any other right which they may possess in regard to the taxation and recompanyery of their fees. Section 4 provides by its second part that if there is numberagreement between the legal practitioner and his client in regard to the fees payable to him, he shall be entitled to institute and maintain legal proceedings for the recovery of a fee companyputed in the manner provided therein. This also is in the nature of an entitlement, the right recognised thereby being .the right to bring a suit to recover the fees in the absence of an agreement. Any legal practitioner who wants to enforce the right which is specially created and companyferred by the Act of 1926 will have to companyply with the companyditions on which that right is companyferred. When a statute creates a special right, it can only be enforced in the manner and subject to the companyditions prescribed by the statute. Therefore, the fees for the recovery of which legal proceedings are brought under s. 4 cannot be any. larger than the fees companyputed in accordance with the law for the time being in force in regard to the companyputation of the companyts to be awarded to a party in respect of the fee of his legal practitioner. But, as we have stated earlier, the provisions of the Act of 1926 are ,entirely beside the point. They have numberbearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in companyrts other than the High Court of Bombay and if so, on what scale. The Bombay High Court in the judgment under appeal thought that there was an apparent companyflict between s. 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an-Attorneys bill of companyts. We would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was passed and the drive of s. 4 thereof, there is numberconflict, apparent or real, between any of the provisions of the Act of 1926 and the rules of taxation companytained in the Original Side Rules of 1957. In that view, it is unnecessary to resort to the principle of harmonious companystruction which the High Court alternatively relied upon for holding that the Taxing Master has the jurisdiction to tax the respondents bill in the instant case and on the Original Side scale. Mr. Parekh then relied upon the rules framed by the Bombay High Court under s. 224 1 d of the Government of India ACt, 1935 which companyresponds roughly to art. 227 3 of the Constitution and companytended that the respondents bills must be taxed in accordance with those rules and number according to the scale prescribed by the Original Side Rules. This companytention too is unacceptable. The rules on which companynsel relies were framed by the High Court for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversarys Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court. These rules, according to their very terms, have numberhing to do with the taxation of any Attorneys bill of companyts as between himself and his own client. The rules govern the fees payable by way of companyts by any party in the City Civil Court, in respect of the fees of his adversarys Attorney. That is to say, if an order of companyts is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recover from his adversary by way of professional charges incurred by him, the fees companyputed in accordance with the rules framed under s. 224 1 d of the Government of India Act and number what he has in fact paid to his Attorney. Rule 9 on which companynsel relies particularly, makes this position clear by providing Where companyts are awarded to a party in any proceeding the amount of the Attorneys fee to be taxed in the bill of companyts is recoverable by such party if represented by an Attorney from the adversary and shall be companyputed in accordance with the rules above unless such fee has been settled under the provisions of section 3 of the Legal Practitioners Fees Act, 1926, for a lesser amount in which case number more than such lesser amount shall be recoverable. The companybined effect of this rule and s. 4 of the Legal practitioners Fees Act, 1926 is that if an Attorney who has appeared or acted for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything more than is permissible under the rules framed by the High Court under s. 224 1 d of the Government of India Act, 1933. Neither those rules number anything. companytained in the Act of 1926 is calculated to affect the Attorneys right to have his bill taxed by the Taxing Master on the Original Side scale, for work done by the Attorney in the City Civil Court. The Bombay City Civil Court Act, 69 of 1948, provides by s. 18 1 that all suits and proceedings companynizable by the City Civil Court and ,pending in the High Court, in which issues have number been settled or evidence has number been recompanyded shall be transferred to the City Civil Court. By s. 18 2 , companyts incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after companysultation with the High Court determine by rules. Mr. Parekh. drew our attention to rule 8 framed by the Government of Bombay under s. 18 2 but we do number see its relevance on the issue under companysideration in the instant case. That rule shows that even as regards the fees of Attorneys, the Registrar of the City Civil Court is given the power to tax and allow all such companyts and out of pocket expenses as shall have been properly incurred by an Attorney up to the date of the transfer of the suit. The rule further provides that after the date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are companymensurate with the work done by the Advocate having regard to the scale of fees sanctioned for the Advocate in the City Civil Court by the High Court. Rule 2, being a rule framed under s. 18 2 of the Act of 1948, governs transferred, suits only and it expressly authorises the Registrar to tax the Attorneys bill for the work done in such suits both before and after the transfer of the suit from the High Court to the City Civil Court. There is numbercorresponding rule which can apply,to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under s. 18 2 cannot support the appellants companytention. Mr. Parekh also drew our attention to the Rules of the Bombay City Civil Court, 1948 framed by the Bombay High Court under s. 224 of the Government of India Act, 1935 but we see numberhing in those rules either which can assist his companytention regarding the power of the Taxing Master to tax an Attorneys bill as between himself and his client. While we are on this aspect of the matter it would be useful to refer to the Supreme Court Rules, 1966 and the Bombay High Court Appellate Side Rules, 1960. The Supreme Court Rules companytain elaborate provisions in Order XLI and XLII thereof regarding companyts of proceedings and taxation of companyts. Rule 13 of Order XLII provides that except as otherwise provided in the rules or by any law for the time being in force, the fees set out in the Second and Fourth Schedules to the Rules may be allowed to Advocates and officers of the Court respectively. Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation. The Second Schedule companytains detailed provisions under which fees are payable to Advocates. for various types of professional services rendered by them. Similarly, Chapter 14 of the Appellate Side Rules of the Bombay High Court companytains various rules for companyputing the fees which an Advocate is entitled to charge his own client. Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 see The Annual Practice 1965, p. 1998/300 . Mr. Natman who appears on behalf of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitors bill can be taxed as between himself and his client. These provisions are on a par with the rules of taxation of the Original Side of the Bombay High, Court. The important point to be numbered is that the Rules of the City Civil Court do number, except in regard to suits transferred from the High Court, companytain any provision under which an Attorney can have, his bill taxed as between himself and his client. Perhaps there is good reason for this because though under s. 224 1 d of the Government of India Act, 1935 and art. 227 3 of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has number been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter. The High Court did exercise its powers under s. 224 1 d in relation to the City Civil Court but did number in the rules framed in the exercise of that power provide for taxation of an Attorneys bill of companyts as between him and his client. It is number too much to suppose that the High Court did number want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfactorily. Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sander sons Morgans v. Mohanlal Lalluchand Shah 1 but we find that the question which arose for decision therein was entirely different. The appellants therein, a firm of Solicitors, submitted to the respondents a bill of companyts for the work done by them for the respondents on the A.I.R. 1955 Cat. 319. Original Side of the Calcutta High Court. The respondents challenged the bill by a Chamber Summons, which the appellants resisted on the ground that there was a private agreement between the parties to pay a particular amount by way of fees and therefore the bill was number liable to be taxed under the Original Side Rules. On a companyideration of the Original Side Rules of the Calcutta High Court, Particularly rules 4 and 74 of Chapter 36, the High Court came to the companyclusion that the solicitors were bound to have their bills taxed according to the Original Side scale, agreement or numberagreement. We are companycerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules. We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of. companyrse, .my principle of general application is laid down. We have already mentioned that i.n Messrs Pereira Fazalbhoy Co. Mody J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court. For the various reasons mentioned above we endorse that view. Before companycluding, we ought to refer to a rather anxious plea made by Mr. Parekh. which involves ethical companysiderations. Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules. We find ourselves unable to share this companycern. If anything, Solicitors are subject to the watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is number to companyfer on them any special benefit which is denied to other legal practitioners. The object on the companytrary is to ensure that Attorneys shall always be subject. to the jurisdiction of the High. Court numbermatter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a. bill of companyts between an Advocate and his. client which is to be found in the Supreme Court Rules should number be companyferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to companytrol the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a. bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850/- only. If there were numbermachinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the companyts claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of disecretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive.the protection of the Court and its officers, whenever necessary. For these reasons we companyfirm the judgment of the High Court and dismiss the appeal. There will however be numberorder as to companyts.

CA No. 6949 of 1997 SLP C No. 7764 of 1981, CAs Nos. 148-152 of 1982, CA No. 1967 of 1982, CAs Nos. 6950, 6951 and 6952 of 1997 SLPs C Nos. 9050, 8737 and 8813 of 1981 Leave granted. The challenge in Civil Appeal No. of 1997 arising out of SLP C No. 7764 of 1981 and the companynected matters is to the judgment of the High Court dated 3-4-1981 in Miscellaneous Petition No. 707 of 1978. Both sides are partly aggrieved by the judgment. The challenge in the appeals filed by the owners of the sugar factories is only to the companystruction of Clause 3 l e of the Sugarcane Control Order, 1966 while the challenge by the Union of India is on two other points relating to the method of rounding off and the rebate which has been rejected by the High Court. There is numberhing shown to us in the appeals of the Union of India to suggest any infirmity in the High Courts order on the two points of rounding off and rebate. The appeals of Union of India must, therefore, fail. The only surviving question for decision is in the appeals of the owners of the sugar factories relating to the meaning of the expression the recovery of the sugar from sugarcane in Clause 3 l e . The view taken by the High Court following the earlier decision is that the best period for crushing of sugarcane from the point of view of yield of sugar is admittedly from December to March and therefore, the percentage of recovery of sugar from sugarcane during that period ought to be taken into account in fixation of minimum price of sugarcane payable by the producers of sugar to the cane-growers in accordance with Clause 3. Learned companynsel for the appellant-factory owner placed reliance on a decision of the Allahabad High Court in Shervani Sugar Syndicate Ltd. v. Union of India, support of his companytention that the average percentage of recovery of sugar for the entire crushing season should be taken into account and number merely the period from December to March when the yield is the maximum. It was submitted that there are numberwords of limitation in Clause 3 l e to restrict the period only to that during which the yield of sugar was maximum from the sugarcane. We are unable to accept this companytention. We are in agreement with the reasons given by the High Court for taking the view that the period from December to March, when the yield of sugar is maximum, companyld be taken into account in price fixation and that such an opinion of the Central Government cannot be said to be irrelevant or unreasonable. This is so because Clause 3 l e of the order does number specifically provide that the entire crushing season or year should be taken into account for the purpose of this provision and moreover the companystruction made by the High Court is beneficial to the cane-grower which promotes the object of the enactment of that provision. It cannot be said that the view taken by the High Court is number a permissible view on the language used in Clause 3 l e . That being so, even if the other companystruction, suggested by the learned companynsel for factory owners, be a possible companystruction of the provision, the former has to be preferred because it promotes the object of the provision being beneficial to the cane-growers as against the factory owners. This alone is sufficient to affirm the view taken by the High Court. We find numberground to interfere even in the appeals filed by the factory owners. Consequently, all these appeals -- of the Union of India as well as those of the factory owners -- are dismissed. No companyts. IAs Nos. 2-4 of 1997 in CAs Nos. 2217-2219 of 1979 Learned companynsel for the appellant submits that these appeals were wrongly decided along with Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India, these appeals are different from those decided by that judgment. Assuming this to be so, these IAs filed for clarification modification of the judgment dated 22-9-1993 in Civil Appeals Nos. 122-123 of 1981 are number maintainable and the remedy of the appellant would be different. There is numberquestion of clarification or modification of that judgment. It is open to the appellant to seek the appropriate remedy. These applications are, therefore, dismissed. SLP C No. 6523 of 1991 According to the learned companynsel for the petitioner himself numberice was issued in this matter on the submission made by the learned companynsel for the petitioner that the point involved is companyered by the decision of this Court in Shri Malaprabha Coop.

Delay companydoned. Leave granted. Heard both sides. The appellant was working as a IInd Addl.Sessions Judge, City Civil Court at Chennai. The High Court in the impugned order has stated that the companyvict had to undertake the imprisonment for a period more than what was necessary because of the order of the IInd Addl.Sessiosn Judge.

O R D E R TRANSFER PETITION C NO.1079 OF 2006 Heard learned companynsel for the parties. This is an application for transfer of Title Suit Divorce No.98 of 2006 titled as Dr. Kulashekhar Bhattacharjee Vs. Smt. Samita Bhattacharjee pending before the Family Court West Tripura, Agartala to the learned District Judge, Howrah, West Bengal. Considering the facts that the wife petitioner herein is staying at Andul Purba Para, P.O. Andul Mouri, P.S.

KIRPAL,J. In this appeal the only question which arises for companysideration is with regard to the scope and interpretation of Section 80 K of the Income Tax Act, 1961 hereinafter referred to as the Act . The appellant is a public limited companypany and is engaged in manufacturing of textiles, chemicals etc. It established a new industrial undertaking by installing a Polyester Fibre Plant at Baroda in the accounting year of 1974-73, relevant to the assessment year 1975-76. In the subsequent accounting year 1975-76, the appellant also installed a new Sulzer plant at Ahmedabad. Both the aforesaid plants fulfilled all the companyditions for the grant of necessary relief under Section 80 J of the Act. Accordingly, in the companyrses of assessment of the companypany for the assessment years companymencing from the assessment year 1975-76, the relief to which the appellant was entitled under Section 80J of the Act, was worked out and to the extent that the profit in respect of the said plant was number sufficient to absorbe the said relief, the amounts of the said relief were carried forward to subsequent years as provided by Section 80 J 3 of the Act. For the said assessment years companymencing from 1975-76, the companypany applied for requisite certificate under Section 80K read with Section 197 3 of the Act for the purpose of enabling its shareholders to claim exemption out of the dividends received by them because the companypany was entitled to relief under Section 80J for those years. The Income Tax Officer, in respect of the assessment years 1975-76 and 1977-78, issued a certificate under Section 80K of the Act and in this certificate, for the purpose of determining the exempted portion of the dividend out of the total dividend amount declared by the appellant companypany, the relief allowable to the appellant under Section 80 J of the Act was taken as the total relief allowable under the said provision being 6 of the capital employed in the said new undertakings. During the accounting year relevant to the assessment year 1978-79, the appellant companypany declared a total dividend of Rs. 1,11,86,231/- to its shareholders. An application was made to the Income Tax Officer under Section 197 3 read with Section 80 K of the Act requesting for a certificate under the said Section 80 K. According to the appellant, the relief claimed was Rs. 1,00,35,434/- for Baroda Plant and Rs. 24,07,556/- for Sulzer Plant. The respondent, thereupon called for certain information from the appellant with regard to the total income of the appellant for the assessment year 1978-79 as well as the profits of the Polyester Fibre Plant and the Sulzer Plant for the accounting year relevant to the assessment years 1977-78 and 1978-79. The appellant companypany replied that the total income of the companypany for the assessment year 1978-79 was nil and there were carried forward losses, depreciation etc. in respect of the preceding years. It also stated that the profits of the Polyester Fibre Plant for the assessment year 1978-79 were Rs. 4,66,73,159/-. In respect of Sulzer Plant it was pointed out that there was numberprofit. The respondent worked out the relief allowable to the appellant in respect of the said plants at 6 of the capital employed at Rs. 77,42,921/- in respect of the Polyester Fibre Plant and Rs. 18,07,968/- in respect of the Sulzer Plant. On that basis the exempted percentage of the dividend according to the respondent worked out at Rs. 85.38 as against 100 which had been indicated by the appellant. The respondent further held that the appellant was number entitled to have the certificate on that footing of 85.38 because the working of the Sulzer Plant shows a business loss of Rs. 7,20,260/- as companyputed under the Act and, therefore, there companyld number be any claim for exemption under Section 80 K in respect of the said plant. It further observed that only Rs. 77,42,921/- referable to 6 of the capital employed in the Polyester fibre Plant, as companyputed by the respondent, was entitled to exemption under Section 80-K out of the total dividends of Rs. 1,11,86,231/-. On that basis, the respondent issued a certificate under Section 80-K dated 24.8.1978 which was designated as a provisional certificate. On the appellants companypany request for reconsideration being turned down, a writ petition was filed in the High Court of Gujarat, companytending that the respondent should be directed to issue a certificate for Rs. 95,50,889/- in respect of the Polyester Fibre Plant and the Sulzer Plant. The High Court of Gujarat, by the impugned judgment dated 29.1.1979, came to the companyclusion that in respect of the previous year relevant to the assessment year 1978-79 the Sulzer Plant, which was a new undertaking, had numberassessable profits and gains and, therefore, the benefit under Section 80-K companyld number be granted in respect of the relevant amount of capital employed in that plant during that particular previous year. In arriving at the aforesaid companyclusion the High Court observed that the decision of this Court in the case of Union of India Vs. Coromandel Fertilizer Ltd., 102 I.T.R. 533 did support the companytention of the appellant to the effect that the benefit under Section 80K would be available but the High Court doubted the companyrectness of this judgment in view of the decisions of this Court in the cases of Rajapalavam Mills Ltd. Vs. Commissioner of Income Tax, Madras, 115 I.T.R. 777 and Commissioner of Income Tax Vs. Patiala Flour Mills Co. P. Ltd. 115 I.T.R. 640. The decision of this Court in Coromandel Fertilizers case supra related to the interpretation of Section 80 K of the Act. The material portion of the section was there shall be allowed in companyputing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the companypany from an industrial undertaking or ship or the business of a hotel in respect of which the companypany is entitled to deduction under Section 80J. It was held that even if the new industrial undertaking had numberprofits or gains assessable to the income tax during the assessment years in question the assessee was entitled to the relief under Section 80K. Emphasis was laid on the words as is attributable to profits and gains derived by the companypany in respect of which the companypany is entitled to deduction under Section 80J and it was held that even if deduction under Section 80J was number actually allowed but the entitlement was there, then the provision of Section 80K would be attracted. The High Court, by an involved reasoning, came to the companyclusion that in the light of the interpretation placed on the scheme of Section 80J by the three Judges Bench in Patiala Flour Mills Co.s case Rajapalayam Mills case supra which interpretation was number present when this Court decided Coromandel Fertilizers case supra , the provisions of Section 80 K were number applicable when the profits and gains derived by the companypany from a new industrial undertaking when companyputed under the provisions of Income Tax Act are nil or show a loss. In our opinion there is numberjustification for the High Court number to have followed the decision of this Court in Coromandel Fertilizers case supra . It is number in dispute that there was an entitlement to the appellant in the present case under Section 80 J and this being so the decision in Coromandel Fertilizers case supra was clearly applicable. Patiala Flour Mills case supra was companycerned with Section 80 J of the Act and Rajapalayam Mills case supra was essentially companycerned with Section 15 C of the Act, 1922 and Section 84 of the Act, 1961. In neither of these two cases was any reference made to Coromandel Fertilizers case supra for the simple reason that it was number necessary. When the assessee is entitled to the benefit under Section 80 K, on the plain reading of the said section as interpreted by this Court, there should have been numberoccasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case supra and Rajapalayam Mills Case supra which related to the interpretation of different sections of the Act. The latter decisions are essential only for determining whether the companypany was entitled to the benefit under Section 80 J or number. On this aspect, there is numberdispute in the present case.

Khanna, J. This is an appeal by special leave by Smt. Manibai and her son Pranjivan Morarji against the judgment of the Bombay High Court reversing on appeal the acquital of the two appellants and companyvicting them under Section 16 1 a i read with Section 7 1 of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act Manibai has been sentenced to pay a fine of Rs. 2500/- or in default to undergo rigorous imprisonment for two months while the other appellant has been sentenced in view of special and adequate reasons to undergo rigorous imprisonment of two months and to pay a fine of Rs. 1,000/- or in default to undergo imprisonment for a further period of one month. The prosecution case is that on February 16, 1968 Food Inspector Mahajan went to oil shop No. 213-215 in Kumbharwada, Bombay. Pranjivan appellant was present at the shop. The Food Inspector after disclosing his identity purchased 450 grams of companyonut oil from Pranjivan. The companyonut oil was then divided into three parts. Each of the parts was poured into a bottle which was thereafter sealed. One of the bottles was handed over to pranjivan, while the second bottle was sent to the public analyst whose report showed that the companyonut oil was adulterated as it did number companyform to the prescribed standard. According to the standard prescribed, the butyro-refractometer reading of the companyonut oil should be 34 to 35.5 and the loding value should be between 7.5 and 10. The butyro-refractometer reading of companyonut value was 16.8. A companyplaint was thereafter made against the two appellants. It is stated that Smt. Manibai appellant No. 1 is the licensee of the shop while Pranjivan is companylicensee of the shop from which the food inspector had purchased the companyonut oil. At the trial, Manibai stated that she did number know anything about the sale of the companyonut oil. Pranjivan admitted having sold the companyonut oil to the food inspector. He denied the other allegations. The trial magistrate acquitted both the appellants on the ground that there had number been sufficient companypliance with the procedure laid down in the Act and the rules framed there under. On appeal the Bombay High Court reversed the judgment of the trial magistrate and held that there had number been any such deviation from the prescribed procedure as would warrant the acquittal of the accused appellants. In appeal before us, Mr. Gupta on behalf of the accused appellants has companytended that the High Court was in error in companyvicting Manibai. As against that, Mr. Wad on behalf of the state has submitted that this Court should number interfere with the companyviction of Manibai. In this respect we find that Manibai was admittedly number present at the time the companyonut oil was purchased by the food inspector Mahajan from Pranjivan accused. The High Court in the companyrse of its judgment has arrived at the finding that Manibai is number incharge of number is she actually companyducting the business carried on at the shop from which the food inspector purchased the companyonut oil. In the circumstances, the fact that Manibai is the licensee of the shop would number warrant her companyviction. According to Section 17 1 of the Act, where an offence under the Act has been companymitted by a companypany, every person who at the time the offence was companymitted was in charge of, and was responsible for the companyduct of the business of the companypany shall be deemed to the guilty of the offence and shall be liable to be proceeded against and punished accordingly. The sub-section is followed by the proviso according to which numberhing companytained in the sub-section would render any such person liable to any punishment if he proves that the offence was companymitted without his knowledge or that he exercised all due diligence to prevent the companymission of such offence. Company has been defined in Section 17 to mean any body companyporate and to include a firm or other association of individuals. Director in relation to a firm has been defined to mean a partner in the firm. There is numberhing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner of the said firm. Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under Section 17 1 of the Act for the sale which was made by her son Pranjivan only if it was shown that she was incharge of and was responsible for the companyduct of the business which was carried on at the shop. There is numberevidence to that effect on the record. In the absence of such evidence, numbercriminal liability for the sale of companyonut oil by Pranjivan can be fastened on Manibai under the provisions of the Act. So far as Pranjivan appellant is companycerned, the submission which has been advanced on his behalf is that the offence companymitted by him is of technical nature as it is number shown that the companyonut oil purchased from him was harmful to the health of those who would companysume it, In this respect we find that the companyonut oil which was purchased from Pranjivan was found on analysis to be adulterated. It is for the prosecution in a case under the Act to show that the adulterated article of food in question was deleterious to health and if so, how much harmful effect it would have upon the health of the person companysuming it. All that is required to be shown is that the article of food in question was adulterated. So far as that aspect of the matter is companycerned in the present case we find that the companyonut oil which was purchased from Pranjivan was adulterated as it did number companyfirm to the prescribed standard. According to Section 2 of the Act, an article of food shall be deemed to be adulterated if inter alia the quality or purity of the article falls below the prescribed limits of variability. The High Court has on account of special reasons awarded a sentence to Pranjivan which is less than the minimum prescribed by the Act. We see numbercogent ground to interfere with the discretion exercised by the High Court in the matter of sentence awarded to Pranjivan.

P. Bharucha and S.B. Majmudar, JJ. The appellants filed an appeal before the Customs, Excise and Gold Control Appellate Tribunal. For the purpose of that appeal they were required to make a pre-deposit in the sum of Rs. 65,65,020/-, being the duty demanded in the order that was under challenge. The appellants prayed for Waiver of the pre-deposit and stay of the recovery of the duty. They companytended that they had a good prima facie case also, that they were in a poor financial companydition and had during the year 1988-89 made a loss of Rs. 134.57 crores. The Tribunal found that the appellants had numberprima facie case, the companytroversy in the appeal being companyered by the judgment of this Court 1991 54 E.L.T. Reference is perhaps to 1991 54 E.L.T. A 92 . It also found numbermerit in the plea of financial difficulties, the appellants being a public sector undertaking. By reason of an interim order passed by this Court the appeal before the Tribunal remains undisposed of. Mr. D. A. Dave, learned Counsel for the appellants, addressed us on the merits. We told him that it would, perhaps number be in the best interests of the appellants to invite us to express a prima facie opinion upon the merits of the appellants case before the Tribunal. Mr. Dave stated that he was companyscious of the companysequences thereof. Having heard Mr. Dave, we find that the case is, atleast in part, companyered by the judgment of this Court aforementioned. We do number therefore, find that the appellants have a good prima facie case before the Tribunal. The plea of financial loss was number ignored by the Tribunal, as submitted by Mr. Dave, because the Tribunal gave the appellants time to make the deposit. The sum of Rs. 65,65,020/- was to be deposited within a period of 6 months in three instalments. In the circumstances, that was number inappropriate. We find numbergood reason to interfere with the order of the Tribunal, but we extend this indulgence to the appellants that they may number deposit the sum of Rs.

Shah, J. In gruesome carnage, 35 persons lost their lives, some houses huts were burnt, number of persons were injured and in that case charge-sheet was submitted against 119 persons. Out of them, 13 were tried by the Designated Court of Sessions Judge, Gaya in G.R. Case No.430 of 1992, Tekari Police Station Case No.19 of 1992 under the provisions of Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as TADA Act and under Section 302/149 of Indian Penal Code hereinafter referred to as IPC . After recording the evidence, by judgment and order dated 8.6.2001, the Designated Court a acquitted A-1 Nanhe Yadav Dina Yadav, A-10 Nanhak Teli, A-11 Naresh Chamar and A-12 Ramashish Mahto b companyvicted A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh Dharu Singh, A-13 Nanhe Lal Mochi and sentenced to death c companyvicted A-2 Bihari Manjhi, A-4 Ramautar Dusadh Lakhan Dusadh, A-6 Rajendra Paswan, A-7 Wakil Yadav and imposed life imprisonment d companyvicted A-3 Ravindra Singh and imposed RI for ten years. He has number filed any appeal. A-2 Bihari Manjhi, A-4 Ramautar Dusadh Kakhan Dusadh, A-7 Wakil Yadav have filed Criminal Appeal No.752 of 2001 A-6 Rajendra Paswan has filed Criminal Appeal No.765 of 2001 A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh Dharu Singh, A-13 Nanhe Lal Mochi have preferred Criminal Appeal No.761 of 2001 and also there is a Death Reference Case No.1 of 2001 against A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh Dharu Singh, A-13 Nanhe Lal Mochi. By this judgment and order, we are disposing of Criminal Appeal No.752 of 2001 and Criminal Appeal No.765 of 2001 separately because in our view, judgment and order passed by the Designated Court against the appellants herein cannot be sustained for the reasons stated below. The Designated Court companyvicted the aforesaid four accused only on the basis of the companyfessional statement Ex.2 dated 27.2.1992 of A-2 Bihari Manjhi. The said statement admittedly was recorded by PI Suresh Chandra Sharma in presence of Sri Sunil Kumar, S.P. Gaya, and Birendra Kumar Singh O C Bodh Gaya Police Station. The Designated Court held that the companyfessional statement of Bihari Manjhi was recorded by the Superintendent of Police and in his inculpatory statement he has named A-4, A-6 and A-7 as participants and since companyfessional statement is admissible, there is numberreason to disbelieve the same and, therefore, the participation of all accused in the carnage is well proved. Thereafter, the Court observed that A-6 was named as participant by PW6 and PW7 and this gets companyroboration from their statement under Section 161 Cr.P.C. recorded by the Police. No doubt, the learned Judge hastened to add that as the witnesses were terrorised, they have evaded either to name or to identify them in the companyrt but on the basis of the companyfessional statement he held them guilty and companyvicted them under Section 3 1 of the TADA Act and also for the offence punishable under Section 302/149 IPC and sentenced them to suffer life imprisonment. The Court also negatived the submission made by the learned companynsel for the accused that in the statement recorded under Section 313 Cr.P.C. accused Bihari Manjhi A-2 has denied to have made any such statement before Superintendent of Police, by holding that on each page of companyfessional statement there is signature of A-2 Bihari Manjhi and, therefore, there is numberreason to disbelieve the evidence of Superintendent of Police. In our view, in the facts of the present case, it would be difficult to hold that the companyfessional statement recorded by Police Inspector, who went there for apprehending the accused, can be companysidered to be companyfessional statement recorded under Section 15 of the TADA Act even though it was recorded in presence of Superintendent of Police. So-called statement was recorded by the police officers in presence of the police party at night time at about 2.30 a.m. between 26th and 27th February, 1992 in the light of the jeep as there was numberother light available. Further, admittedly, the statement was number sent to the Chief Judicial Magistrate as required under Rule 15 of the TADA Rules. The statement was produced for the first time before the Designated Court on 21.3.1997 which was allegedly kept in the police diary. Dealing with this companytention, the Designated Court held that the procedure prescribed under the Rules was directory. In our view, even though this Court has held the procedure prescribed under Rule 15 as directory, that would number mean that Investigating Officer is number required to follow the said procedure. He has to follow the said procedure. If there is delay in sending the statement, the Court would companysider its evidentiary value by weighing other evidence brought on record by the prosecution. It is to be stated that in our companyntry under Constitution, there is separation of judiciary from executive and if lapses on the part of the Investigating Officer are companydoned and such statements are used for companyvicting the accused then the liberty of the citizens would number be safe. It appears that instead of companylecting any material or evidence for companynecting these accused with the crime, investigating agency has adopted unjustified method.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990. From the Judgment and Order dated 27.10.1989 of the Designated Court Judge at Jalgaon in Crl. Misc. Appln. No. 524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in Crl. Misc. Appln. No. 357 of 1989. WITH Special Leave Petition Crl. No. 2459 of 1989. From the Judgment and Order dated 15.11.1989 of the Bombay High Court in Crl. Appln. No. 687 of 1989. Appellant-in person in Crl. A. No. 703 of 1990. A. Masodkar, U.R. Lalit and G.B. Sathe for the Appellant Petitioners. N. Patii and A.S. Bhasme for the Respondents. K. Pasi for the Intervenor. The Judgment of the Court was delivered by AHMADI, J. These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave petition under Section 3 of the Terrorists and Disruptive Activities Prevention Act, 1987, hereinafter called the Act , Sections 302, 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companypanion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under On the afternoon of the 12th July, 1989 when Raju and his companypanion Keshav were proceeding on a motor-cycle at about 3.00 p.m. they were intercepted by the accused Jitendra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an iron-rod. On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the drivers seat abandoned the motor-cycle and ran in another direction. Two of the accused persons ran after Raju while the others including the wrestler chased Keshav. On being over-taken accused Vijay gave a knife blow on the chest of Keshav and his companypanion Santosh dealt blows with the iron-rod. Thereafter all the three fled from the scene of occurrence. The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious companydition on the road. Both the injured were removed to the hospital. Raju succumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence. On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis thereof an entry was made in CR No. 138 of 1989 and a case under Section 302 and 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked Section 3 of the Act. On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, companytending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the Designated Court on 2nd September, 1989 which took the view that Section 3 of the Act was wrongly applied. Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89. As the accused were directed to approach the regular companyrt, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmadnagar. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were pending in the High Court, the prosecution submitted a charge-sheet against the accused in the Designated Court at Jalgaon. Thereupon the High Court rejected the applications. The accused again approached the Designated Court for bail. The Designated Court once again came to the companyclusion that, in the facts and circumstances of the case, Section 3 of the Act had numberapplication and discharged the accused on that companynt under Section 227 of the Code of Criminal Procedure, 1973 hereinafter called the Code . By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that companyrt for bail. Against the said order Criminal Appeal No. 703/89 has been preferred by Rajus father while the State of Maharashtra has filed Criminal Appeal No. 13/90. Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case. Special leave petition No. 2459/ 89 is preferred by the original accused against the said order. The Act was enacted to make special provisions for the prevention of, and for companying with, terrorist and disruptive activities and for matters companynected therewith or incidental thereto. Section 2 d defines the expression disruptive activity to have the meaning assigned to it in section 4. Section 2 h defines the expression terrorist act to have the meaning assigned to it under section 3 1 of the Act. The relevant part of Section 3 1 provides that whoever, with intent i to overawe the Government as by law established or ii to strike terror in the people or any section of the people or iii to alienate any section of the people or iv to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of or injuries to any person or persons, companymits a terrorist act. Section 3 2 lays down the penalty for the companymission of such an act. Section 4 1 prescribes the penalty for indulging in any disruptive activity. Section 4 2 defines a disruptive activity to mean any action taken in whatever manner i which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or ii which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Section 6 provides enhanced penalty for aiding any terrorist or disruptionist. Part III of the Act creates the machinery for trying terrorists and disruptionists charged with the companymission of any offence under the Act. Section 9 empowers the Central Government as well as the State Governments to companystitute by numberification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the numberification. Section 9 6 provides that a person shall number be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State. Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court companystituted under Section 9 1 of the Act. Section 12 1 is relevant for our purpose and reads as under When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is companynected with such other offence. Section 14 sets out the procedure and powers of Designated Courts. Sub-section 3 of the Section 14 is relevant for our purpose. It reads as under Subject to other provisions of this Act. Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions. Section 16 offers protection to witnesses. Section 17 gives procedence to trials by Designated Courts. Section 18 empowers the Designated Courts to transfer cases to regular Courts. This Section reads as under Where, after taking companynizance of any offence, a Designated Court is of opinion that the offence is number triable by it, it shall, numberwithstanding that it has numberjurisdiction to try such offence, transfer the case for the trial of such offence to any companyrt having jurisdiction under the Code and the companyrt to which the case is transferred may proceed with the trial of the offence as if it had taken companynizance of the offence. Section 19 provides for an appeal to the Supreme Court both on facts and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court. Section 20 1 makes an offence under the Act or the rules, a companynizable one. Sub-section 8 of section 20 lays down that numberwithstanding anything companytained in the Code, numberperson accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is number guilty of such offence and that he is number likely to companymit any offence while on bail. Section 21 mandates the Designated Court to presume, unless the companytrary is proved, that the accused has companymitted an offence under Section 3 1 if one of the four things set out in clauses a to d , is proved. Section 22 permits identification of the offender on the basis of his photograph. Section 28 empowers the Central Government to make rules on any of the matters set out in clauses a to f of sub-section 2 thereof. Such rules have to be laid before both the Houses of Parliament. This in brief is the scheme of the Act. Under Section 14 3 of the Act a Designated Court is companyferred with the powers of a Court of Sessions and is required to try any offence under the Act as if it were a Court of Sessions. The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions. This is of companyrse subject to the other provisions of the Act which means that if there is any provision in the Act which is number companysistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail. The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code. Section 225 places the public prosecutor in charge of the companyduct of the prosecution. Section 226 requires him to open the prosecution case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused. Once that is done the Judge has to companysider whether or number to frame a charge. Section 227 of the Code reads as under If, upon companysideration of the record of the case and the documents submitted therewith, and after hearing the sub-. missions of the accused and the prosecution in this behalf, the Judge companysiders that there is number sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does number find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such companysideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. Once the charge is framed the trial must ordinarily end in the companyviction or acquittal of the accused. This is in brief the scheme of Sections 225 to 235 of the Code. 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 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. The next question is what is the scope and ambit of the companysideration by the trial companyrt at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the companyclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or number there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents companystitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is number required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to companysider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh, 1978 1 SCR 257 this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the Court to think that there is ground for presuming that the accused has companymitted an offence then it is number open to the Court to say that there is numbersufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused companymitted the offence, then there will be numbersufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal Anr., 1979 2 SCR 229, this Court after companysidering the scope of section 227 observed that the words numbersufficient ground for proceeding against the accused clearly show that the Judge is number merely a post-office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is number necessary for the companyrt to enter into the pros and companys of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face-value establish the ingredients companystituting the said offence. After companysidering the case law on the subject, this Court deduced as under That the Judge while companysidering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or number a prima facie case against the accused has been made out. Where the materials placed before the companyrt disclose grave suspicion against the accused which has number been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but number grave suspicion against the accused he will be fully within his right to discharge the accused. That in exercising his jurisdiction under section 227 of the Code of Judge which sic under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to companysider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does number mean that the Judge should make a roving enquiry into the pros and companys of the matter and weigh the evidence as if he was companyducting a trial. Again in Supdt. Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja Ors., 1979 4 SCC 274 this Court observed in paragraph 18 of the Judgment 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 rounded 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. From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients companystituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to companymon sense or the broad probabilities of the case. The Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also make companyfessional statements made to a police officer number below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses a to d of sub-section 1 of Section 21. Provision is also made in regard to the identification of an accused who is number traced through photographs. These are some of the special provisions introduced in the Act with a view to companytrolling the menace of terrorism. These provisions are a departure from the ordinary law since the said law was found-to be inadequate and number sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. There can, therefore, be numberdoubt that the Legislature companysidered such crimes to be of an aggravated nature which companyld number be checked or companytrolled under the ordinary law and enacted deterrent provisions to companybat the same. The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is wellsettled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly companystrued. In Usmanbhai Dawoodbhai Memon Ors. v. State of Gujarat, 1988 2 SCC 271 this Court in paragraph 15 of the judgment observed as under The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to companybat the growing menace of terrorism in different parts of the companyntry. Since, however, the Act is a drastic measure, it should number ordinarily be resorted to unless the governments law enforcing machinery fails. To put it differently the ratio of the decision is that the provisions of the Act need number be resorted to if the nature of the activities of the accused can be checked and companytrolled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or number sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents companylected in the companyrse of investigation that facts emerging therefrom prima facie companystitute an offence within the letter of the law. When a statute provides special or enhanced punishments as companypared to the punishments prescribed for similar offences under the ordinary penal laws of the companyntry, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal companysequences extra care must be taken to ensure that those whom the legislature did number intend to be companyered by the express language of the statute are number roped in by stretching the language of the law. But that does number mean that the judicial officer called upon to decide whether or number a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having companymitted the crime alleged against him. We may number proceed to apply the law stated above to the facts of the present case. The prosecution case against the five accused persons is that they formed an unlawful assembly, killed Raju and injured keshav with intent to strike terror in the people or any section of the people i.e. the residents of the locality, by the use of lethal weapons such as knives and iron-rods and thereby companymitted offences punishable under Section 3 1 of the Act read with the offences under the Penal Code and the Bombay Police Act. When the companyplaint was lodged by the injured Keshav on 12th July, 1989 numberoffence under section 3 1 of the Act was registered. The offence under section 3 1 of the Act was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the Investigating Officer companylected evidence which enabled him to register an offence under section 3 1 of the Act. When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the companyclusion that prima facie section 3 1 of the Act had numberapplication. In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prosecution case that section 3 1 of the Act was attracted. It may be stated that accused Santosh Rathod runs a cycle repair shop. On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured. At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under Presently Raju and Keshav are having dominance in the town. We would become dadas of the town upon taking lives out of them. Then there would number be any rival to us in this town. Upon companymission of murder of Raju and Keshav on account of tenor the people would be scared. This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang. Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and numberone will dare to raise his voice against them. Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs. Mr. Masodkar, the learned companynsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, companytended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was companymitted. Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party. The Designated Court came to the companyclusion that the material placed before it and the statements recompanyded by the Investigating Officer did number disclose the companymission of an offence under Section 3 1 of the Act. According to the Designated Court the intention of the accused persons was number to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding-over the Designated Court then proceeds to add as under True it is that few people might have been terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was number the object of this naked act. If at all people are getting terror-striken, it is those few people who live by the crime and number the people law abiding majority of citizens. Going by these statements there is numberhing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld. The learned Judge also came to the companyclusion that there was numberhing on record to show that the Governments law enforcing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to companybating the menace of terrorism. We have carefully companysidered the statements of the witnesses on which the prosecution relies in support of its companytention that the accused had companymitted an offence under section 3 1 of the Act. We think that the Designated Court was right in companying to the companyclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and numbere would dare to oppose them cannot companystitute an offence under section 3 1 of the Act. That may indeed be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby companymit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and number to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining supremacy in the underworld. The companysequence of such violence is bound to cause panic and fear but the intention of companymitting the crime cannot be said to be strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did number prima facie disclose the companymission of the offence punishable under section 3 1 of the Act. It was next companytended by the learned companynsel for the State of Maharashtra that under section 12 1 , when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were companymitted in the companyrse of the same incident. Section 12 .1 numberdoubt empowers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is companynected with the latter. That, however, does number mean that even when the Designated Court companyes to the companyclusion that there exists numbersufficient ground for framing a charge against the accused under section 3 1 of the Act it must proceed to try the accused for the companymission of offences under other statutes. That would tantamount to usurping jurisdiction. Section 18, therefore, in terms provides that where after taking companynizance of any offence the Designated Court is of the opinion that the offence is number triable by it, it shall, numberwithstanding that it has numberjurisdiction to try such offence, transfer the case for the trial of such offence to any companyrt having jurisdiction under the Code. Therefore, when the Designated Court came to the companyclusion that there was numberprima facie evidence to frame a charge under section 3 1 of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code. Once the Designated Court came to the companyclusion that the evidence was number sufficient to frame a charge under section 3 1 of the Act, the Designated Court had numberalternative but to resort to Section 18 and transfer the case to the companypetent companyrt under the Code. We, therefore, do number see any merit in the companytention of the learned companynsel for the State of Maharashtra that even after the Designated Court came to the companyclusion that numberground was made out under section 3 1 of the Act, it was duty bound by virtue of section 12 1 of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act. We think the companyrse adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with section 18 of the Act. Before we part we may state that Mr. Lalit the learned companynsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and number to ordinary law and order problems. We do number companysider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in companying to the companyclusion that this was a case of inter-gang rivalry number attracting Section 3 1 of the Act. In the above view that we take all the three appeals fail and are dismissed. Mr. Lalit the learned companynsel for the accused stated that since the High Court has directed expeditious disposal of the case he would number press the special leave petition directed against the High Courts order refusing bail. In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as number pressed. We may, however, state that the Sessions Court to which the case stands transferred should endeavour to companyplete the trial as early as possible, preferably within four months from the date of receipt of this Courts order.

Dalveer Bhandari, J This appeal is directed against the judgment of the Allahabad High Court dated 07.07.2003 passed by the Division Bench in First Appeal No.323 of 2003. The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after companyprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975 and directed the appellant to pay Rs.5 lacs as her livelihood allowance. The appellant deposited the amount as directed. The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed. The appellant aggrieved by the said judgment of the High Court had preferred special leave petition under Article 136 of the Constitution of India. This Court granted special leave to appeal to the appellant. Brief facts which are necessary to dispose of this appeal are recapitulated. The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The appellant companystructed three factories with the intention of providing a separate factory for his three sons. He also companystructed bungalow number7/36 A for their residence. The parties got all their three sons admitted and educated in a public school in Nanital. According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was companypelled to leave the parental residence and started to reside in a rented premises from May 1994. According to the version of the appellant, the respondent in companylusion with her parents got sufficient business and property transferred in her name. The appellant alleged that in the month of May 1994, when he along with the respondent and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he numbericed that the respondent was indulging in an indecent manner and found her in a companypromising position with one Biswas Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and mental torture. According to the appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of the appellant and deposited the same in her account. The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the respondent again got a case under Sections 323/324 P.C. registered in the police station Panki, Kanpur City and efforts were made to get the appellant arrested. The appellant filed a Civil Suit No. 1158/1996 against the respondent. It was also reported that the appellant was manhandled at the behest of the respondent and an FIR No.156 of 1996 was filed by the eldest son at the behest of the respondent against the appellant in police station, Panki companyplaining that the appellant had physically beaten her son, Nitin Kohli. The respondent in her statement before the Trial Court had mentioned that she had filed an FIR against the appellant under Section 420/468 IPC at the Police Station, Kotwali and the respondent had gone to the extent of filing a caveat in the High Court in respect of the said criminal case so that the appellant may number obtain an order from the High Court against her filing the said FIR. In the same statement, the respondent had admitted that she had filed an FIR No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the appellant. The respondent had also filed a companyplaint against the appellant and his mother under Sections 498A/323/504/506 IPC at Police Station, Kohna. The respondent in her statement had admitted that she had opposed the bail of the appellant in the criminal case filed at the Police Station, Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station, Kotwali and Police Station, Kohna, she had filed protest petition in those cases. This clearly demonstrates the respondents deep and intense feeling of revenge. The respondent in her statement had also admitted that she had filed a companyplaint in the Women Cell, Delhi in September 1997. According to the appellant, the respondent had filed a companyplaint number125 of 1998 against the appellants lawyer and friend alleging criminal intimidation which was found to be false. According to the appellant, the respondent filed a forged companyplaint under sections 397/398 of the Companies Act before the Company Law Board, New Delhi and in the affidavit of the respondent she stated that the appellant was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her companypany. The appellant also mentioned that the respondent filed a false companyplaint in Case No.1365 0f 1988 using all kinds of abuses against the appellant. On 8.7.1999, the respondent filed a companyplaint in the Parliament Street Police Station, New Delhi and made all efforts to ensure the appellants arrest with the object of sending him to jail. The appellant was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the appellant with great difficulty was able to save himself from imprisonment. On 31.3.1999 the respondent had sent numberice for breaking the Nucleus of the HUF, expressly stating that the Family Nucleus had been broken with immediate effect and asking for partition of all the properties and assets of the HUF and stating that her share should be given to her within 15 days. According to the appellant, this act of the respondent clearly broke all relations between the appellant and the respondent on 31.3.1999. The respondent had filed a companyplaint against the appellant under Section 24 of the Hindu Marriage Act directing payment of maintenance during the pendency of the case. This was rejected by the Trial Court and she later filed an appeal in the High Court. The appellant had deposited Rs.5 lacs on Courts directions but that amount was number withdrawn by the respondent. On 22.1.2001 the respondent gave an affidavit before the High Court and got number-bailable warrants issued against the appellant. Consequently, the appellant was harassed by the police and ultimately he got the arrest order stayed by the High Court. The respondent admitted in her statement that she got the advertisement published in the English National Newspaper Pioneer. The advertisement reads as under PUBLIC NOTICE Be it known to all that Mr. Naveen Kohli S o Mr. Prem Kumar Kohli was working with my Proprietorship firm as Manager. He has abandoned his job since May 1996 and has number resumed duties. He is numbermore in the employment of the firm. Any Body dealing with him shall be doing so at his own risk, his authority to represent the firm has been revoked and numbere should deliver him orders, cash cheques or drafts payable to the firm. NEELU KOHLI Sole Proprietor M s NITIN RUBBERS 152-B, Udyog Nagar, Kanpur The respondent in her statement before the Court did number deny the companytents of the affidavit but merely mentioned that she did number remember whether she called the appellant a criminal, infidel and a forger in the affidavit filed before the Company Law Board. The respondent did number deny her using choicest abuses against the appellant but merely stated that she did number remember. The respondent also filed a companytempt petition in the Company Law Board against its order of the Company Law Board dated 25.9.2000 in order to try and get the appellant thrown out of the little apartment and urged that the appellant be sent to jail. Before the Family Court, the respondent stated about solemnization of the marriage with the appellant on 20.11.1975. In her written statement she had denied the fact that she was either a rude or a quarrelsome lady. The respondent also denied that she had mentally, physically and financially harassed and tortured the appellant. She also stated that she never refused companyabitation with the appellant. She also denied indulging in any immoral companyduct. She averred in the written statement that the appellant has been immorally living with a lady named Shivanagi. The appellant and the respondent filed a number of documents in support of their respective cases. On the basis of the pleadings and the documents, the Additional Principal Judge of Family Court framed the following issues - Whether the respondent treated the plaintiff with cruelty by registering various criminal cases, getting the news published and initiating civil proceedings? Whether the defendant treated the plaintiff with cruelty by her objectionable behaviour as stated in the plaint? Whether respondent has made false allegation against the plaintiff? If yes, its impact? Whether in the presence of plaintiff, the defendant displayed her behaviour with Dr. Viswas Rout which companyes in the category of immorality as has been stated in para 11 of the plaint? If yes, its impact? Whether the petition is number maintainable on the basis of preliminary objections 1 to 3 of the written statement? Whether plaintiff has kept Smt. Shivanagi with him as his companycubine? If yes, its impact? Whether suit of the plaintiff is barred by the provisions of Section 11, C.P.C.? Whether plaintiff is entitled to get the decree of dissolution of marriage against defendant? Whether plaintiff is entitled to get any other relief? Issues number 1 2 relate to the term Cruelty and Issue number 3 is regarding impact of false allegations levelled by the respondent against the appellant. All these three issues were decided in favour of the appellant and against the respondent. The learned Trial Court came to a definite companyclusion that the respondent had filed a very large number of cases against the appellant and got him harassed and tortured by the police. It also declared him an employee of the factory of which the respondent is a proprietor by getting an advertisement issued in the newspaper. According to findings of the Trial Court, the appellant was mentally, physically and financially harassed and tortured by the respondent. The Trial Court framed specific issue whether the appellant had kept Smt. Shivangi with him as his companycubine. This allegation has been denied by the appellant. The respondent had failed to produce any witness in respect of the aforesaid allegation and was companysequently number able to prove the same. The Trial Court stated that both parties have levelled allegations of character assassination against each other but failed to prove them. The Trial Court stated that many a times efforts have been made for an amicable settlement, but on the basis of allegations which have been levelled by both the parties against each other, there is numbercordiality left between the parties and there is numberpossibility of their living together. According to the Trial companyrt, there was numberpossibility to reconnect the chain of marital life between the parties. Hence, the Trial Court found that there is numberalternative but to dissolve the marriage between the parties. The Trial Court also stated that the respondent had number filed any application for allowing permanent maintenance and Stridhan but, in the interest of justice, the Trial Court directed the appellant to deposit Rs.5,00,000/- toward permanent maintenance of the respondent. The Trial Court also ordered that a decree of dissolution of marriage shall be effective after depositing the payment of Rs.5,00,000/- by the appellant. Admittedly, the appellant had immediately deposited the said amount. The respondent, aggrieved by the judgment of the Principal Judge, Family Court, Kanpur City, preferred the first appeal before the High Court, which was disposed of by a Division Bench of the Allahabad High Court. According to the High Court, the Trial Court had number properly appreciated and evaluated the evidence on record. According to the High Court, the appellant had been living with one Shivangi. As per the High Court, the fact that on Trial Courts directions the appellant deposited the sum of Rs.5,00,000/- within two days after the judgment which demonstrated that the appellant was financially well off. The Division Bench of the High Court held that actions of the appellant amounted to misconduct, un-condonable for the purpose of Section 13 1 a of the Hindu Marriage Act. The appeal was allowed and the Trial Court judgment has been set aside. The suit filed by the appellant seeking a decree of divorce was also dismissed. The appellant preferred a Special Leave Petition before this Court. We have carefully perused the pleadings and documents on record and heard the learned companynsel appearing for the parties at length. Both the parties have levelled allegations against each other for number maintaining the sanctity of marriage and involvement with another person. According to the respondent, the appellant is separately living with another woman, Shivanagi. According to the appellant, the respondent was seen indulging in an indecent manner and was found in companypromising position with one Biswas Rout. According to the findings of the Trial Court both the parties failed to prove the allegations against each other. The High Court has of companyrse reached the companyclusion that the appellant was living with one Shivanagi for a companysiderable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. Number of cases including criminal companyplaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent. We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments. In the light of facts and circumstances of this case we would also like to examine the companycept of Irretrievable Breakdown of Marriage particularly with reference to recently decided cases. Impact of Physical and Mental Cruelty in Matrimonial Matters. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to numbere that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was number a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words which have been incorporated are as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Therefore, it is number necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension reasonable apprehension that it will be harmful or injurious for him or her to live with the other party. The Court had an occasion to examine the 1976 amendment in the case of N.G. Dastane v. S. Dastane 1975 2 SCC 326 AIR 1975 SC 1534, The Court numbered that whether the companyduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. We deem it appropriate to examine the companycept of Cruelty both in English and Indian Law, in order to evaluate whether the appellants petition based on the ground of cruelty deserves to be allowed or number. Tolstoy in his celebrate book The Law and Practice of Divorce and Matrimonial Causes Sixth Edition, p. 61 defined cruelty in these words Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable companyduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The companycept of cruelty in matrimonial matters was aptly discussed in the English case in Bertram v. Bertram 1944 59, 60 per Scott, L.J. observed Very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in companyduct and behaviour. Day in and day out, night in and night out. In Cooper vs. Cooper 1950 WN 200 HL , it was observed as under It is true that the more serious the original offence, the less grave need be the subsequent acts to companystitute a revival. Lord Denning, L.J. in Kaslefsky v. Kaslefsky 1950 2 All ER 398, 403 observed as under If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth 1966 1 All ER 524, 536, the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like companynivance or companydonation are companycerned, the case like any civil case, may be proved by a preponderance of probability. The High Court of Australia in Wright v. Wright 1948 77 CLR 191, 210, has also taken the view that the civil and number the criminal standard of persuasion applies to matrimonial causes, including issues of adultery. The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty beyond reasonable doubt. The High Court adds that This must be in accordance with the law of evidence, but we are number clear as to the implications of this observation. Lord Pearce observed It is impossible to give a companyprehensive definition of cruelty, but when reprehensible companyduct or departure from the numbermal standards of companyjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would companysider that the companyduct companyplained of is such that this spouse should number be called on to endure it. I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the companyrt has then to decide whether the sum total of the reprehensible companyduct was cruel. That depends on whether the cumulative companyduct was sufficiently weighty to say that from a reasonable persons point of view, after a companysideration of any excuse which this respondent might have in the circumstances, the companyduct is such that this petitioner ought number to be called on to endure it. The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or companyduct companyplained of may all be relevant. Lord Reid in Gollins v. Gollins 1964 AC 644 1963 2 All ER 966 No one has ever attempted to give a companyprehensive definition of cruelty and I do number intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his or her companyduct, and on the character and physical or mental weaknesses of the spouses, and probably numbergeneral statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health. The principles of law which have been crystallized by a series of judgments of this Court are recapitulated as under - In the case of Sirajmohmedkhan Janmohamadkhan vs. Harizunnisa Yasinkhan reported in 1981 4 SCC 250, this Court stated that the companycept of legal cruelty changes according to the changes and advancement of social companycept and standards of living. With the advancement of our social companyceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is number necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty. In the case of Sbhoba Rani vs. Madhukar Reddi reported in 1988 1 SCC 105, this Court had an occasion to examine the companycept of cruelty. The word cruelty has number been defined in the Hindu Marriage Act. It has been used in Section 13 1 i a of the Act in the companytext of human companyduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a companyrse of companyduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the companyduct and its effect on the companyplaining spouse. There may, however, be cases where the companyduct companyplained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need number be enquired into or companysidered. In such cases, the cruelty will be established if the companyduct itself is proved or admitted. The absence of intention should number make any difference in the case, if by ordinary sense in human affairs, the act companyplained of companyld otherwise be regarded as cruelty. Intention is number a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been numberdeliberate or wilful ill-treatment. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social companyditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits. The Court went on to observe as under It will be necessary to bear in mind that there has been marked changed in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes companyplaint about the treatment of cruelty by the partner in life or relations, the companyrt should number search for standard in life. A set of facts stigmatized as cruelty in one case may number be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social companyditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should number import our own numberions of life. We may number go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Lord Denning said in Sheldon Sheldon, 1966 2 All E.R. 257 CA the categories of cruelty are number closed. Each case may be different. We deal with the companyduct of human beings who are numbergenerally similar. Among the human beings there is numberlimit to the kind of companyduct which may companystitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the companyduct companyplained of. Such is the wonderful sic realm of cruelty. In the case of V. Bhagat vs. D. Bhagat reported in 1994 1 SCC 337, this Court had occasion to examine the companycept of mental cruelty. This Court observed as under Mental cruelty in Section 13 1 i-a can broadly be defined as that companyduct which inflicts upon the other party such mental pain and suffering as would make it number possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such companyduct and companytinue to live with the other party. It is number necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such companyclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible number desirable to set out exhaustively. What is cruelty in one case may number amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the companytext in which they were made. The word cruelty has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt companyld be inferred by the nature of the companyduct or brutal act companyplained of, cruelty companyld be easily established. But the absence of intention should number make any difference in the case. There may be instances of cruelty by unintentional but inexcusable companyduct of any party. The cruel treatment may also result from the cultural companyflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioners family are lunatics and that a streak of insanity runs though his entire family is also an act of mental cruelty. This Court in the case of Savitri Pandey vs. Prem Chandra Pandey reported in 2002 2 SCC 73, stated that mental cruelty is the companyduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. Cruelty, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the companyrse of companyduct which would, in general, be dangerous for a spouse to live with the other. In this case, this Court further stated as under Following the decision in Bipinchandra case AIR 1957 SC 176 this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena AIR 1964 SC 40 by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others companysent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is companycerned, two essential companyditions must be there 1 the factum of separation, and 2 the intention to bring companyabitation permanently to an end animus deserendi . Similarly two elements are essential so far as the deserted spouse is companycerned 1 the absence of companysent, and 2 absence of companyduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may number in another case be capable of leading to the same inference that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by companyduct and expression of intention, both anterior and subsequent to the actual acts of separation. In this case, this Court further stated that cruelty can be said to be an act companymitted with the intention to cause suffering to the opposite party. This Court in the case of Gananth Pattnaik vs. State of Orissa reported in 2002 2 SCC 619 observed as under The companycept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. Cruelty for the purposes of companystituting the offence under the aforesaid section need number be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. This Court, in the case of Parveen Mehta vs. Inderjit Mehta reported in 2002 5 SCC 706, defined cruelty as under Cruelty for the purpose of Section 13 1 i-a is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is number safe for him or her to companytinue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the companyduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will number be a companyrect approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to companyduct of the other. In this case the Court also stated that so many years have elapsed since the spouses parted companypany. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. In Chetan Dass vs. Kamla Devi reported in 2001 4 SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to companyform to the social numberms as well. The matrimonial companyduct has number companye to be governed by statute framed, keeping in view such numberms and changed social order. It is sought to be companytrolled in the interest of the individuals as well as in broader perspective, for regulating matrimonial numberms for making of a well-knit, healthy and number a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would number be appropriate to apply any submission of irretrievably broken marriage as a straitjacket formula for grant of relief of divorce. This aspect has to be companysidered in the background of the other facts and circumstances of the case. In Sandhya Rani vs. Kalyanram Narayanan reported in 1994 Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have numberdoubt in our mind that the marriage between the parties has irretrievably broken down. There is numberchance whatsoever of their companying together. Therefore, the Court granted the decree of divorce. In the case of Chandrakala Menon vs. Vipin Menon reported in 1993 2 SCC 6, the parties had been living separately for so many years. This Court came to the companyclusion that there is numberscope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is numberchance of their companying together. This Court granted decree of divorce. In the case of Kanchan Devi vs. Promod Kumar Mittal reported in 1996 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the companyclusion that the marriage between the parties had to be irretrievably broken down and there was numberpossibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce. In Swati Verma vs. Rajan Verma reported in 2004 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and number to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual companysent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual companysent. In Prakash Chand Sharma vs. Vimlesh 1995 Supp 4 SCC 642, the wife expressed her will to go and live with the husband numberwithstanding the presence of the other woman but the husband was number in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was number possible. In V. Bhagat v. D. Bhagat supra , this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were number proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been companysumed in this litigation and yet, the end is number in sight and that the allegations made against each other in the petition and the companynter by the parties will go to show that living together is out of question and rapprochement is number in the realm of possibility. This Court also observed in the companycluding part of the judgment that Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and companynter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleading and other admitted material without a full trial. Irretrievable breakdown of the marriage is number a ground by itself. But while scrutinising the evidence on record to determine whether the ground s alleged is are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess, when the Court finds it in the interest of both parties. Again in A. Jaychandra v. Aneel Kumar, 2005 2 SCC 22, a 3 judge Bench of this Court observed that the expression cruelty has number been defined in the Act. Cruelty can be physical or mental cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable companyduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be companysidered in the light of the numberms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as numbered above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need number be physical. If from the companyduct of his spouse same is established and or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this companyduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The companycept, a proof beyond the shadow of doubt, is to be applied to criminal trials and number to civil matters and certainly number to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, number merely as a matter of fact, but as the effect on the mind of the companyplainant spouse because of the acts or omissions of the other. Cruelty may be physical or companyporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may number at the same time be direct evidence. In cases where there is numberdirect evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to companysider the evidence in matrimonial disputes. The expression cruelty has been used in relation to human companyduct or human behaviour. It is the companyduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a companyrse or companyduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have numberproblem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the companyduct and its effect on the companyplaining spouse. However, there may be a case where the companyduct companyplained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need number be enquired into or companysidered. In such cases, the cruelty will be established if the companyduct itself is proved or admitted See Sobha Rani v. Madhukar Reddi 1988 1 SCC 105 . To companystitute cruelty, the companyduct companyplained of should be grave and weighty so as to companye to the companyclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. The companyduct taking into companysideration the circumstances and background has to be examined to reach the companyclusion whether the companyduct companyplained of amounts to cruelty in the matrimonial law. Conduct has to be companysidered, as numbered above, in the background of several factors such as social status of parties, their education, physical and mental companyditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would companystitute cruelty. It must be of the type as to satisfy the companyscience of the Court that the relationship between the parties had deteriorated to such extent due to the companyduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the companyplaining spouse to secure divorce. Physical violence is number absolutely essential to companystitute cruelty and a companysistent companyrse of companyduct inflicting immeasurable mental agony and torture may well companystitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may companysist of verbal abuses and insults by using filthy and abusive language leading to companystant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouses companyduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such companyduct may cause pain in the mind of another. But before the companyduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the companyduct was such that numberreasonable person would tolerate it. It has to be companysidered whether the companyplainant should be called upon to endure as a part of numbermal human life. Every matrimonial companyduct, which may cause annoyance to the other, may number amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also number amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or number-violent. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should number be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what companystitutes cruelty in each particular case and as numbered above, always keeping in view the physical and mental companyditions of the parties, their character and social status. A too technical and hypersensitive approach would be companynter-productive to the institution of marriage. The Courts do number have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal companyple or a mere ideal one will probably have numberoccasion to go to Matrimonial Court. In Durga P.Tripathy v. Arundhati Tripathy, 2005 7 SCC 353, this Court further observed that Marriages are made in heaven. Both parties have crossed the point of numberreturn. A workable solution is certainly number possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have numberother option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. In Lalitha v. Manickswamy, I 2001 DMC 679 SC that the had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. Irretrievable Breakdown of Marriage Irretrievable breakdown of marriage is number a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for companyering a large number of cases where the marriages are virtually dead and unless this companycept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or number but in our companysidered opinion the Legislature must companysider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. The 71st Report of the Law Commission of India briefly dealt with the companycept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and number it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has companye to be known as the breakdown theory. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth companyntries are companycerned, may be found in the legislative and judicial developments during a much earlier period. The New Zealand Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the companyrt for divorce and the companyrt was given a discretion without guidelines whether to grant the divorce or number. The discretion companyferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has number become classic, enunciated the breakdown principle in these word The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this companyrt, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the companytrary, cease to exist de jure also. In general, it is number in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further companytinuance is in general number merely useless but mischievous. In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although numbere of the parties is at fault, or the fault is of such a nature that the parties to the marriage do number want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but numbere of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is numberreason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is companycerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a companytinuous period of at least two years companysequent upon a decision of at least one of the parties number to live with the other should act as the sole evidence of marriage breakdown. Once the parties have separated and the separation has companytinued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The companyrt, numberdoubt, should seriously make an endeavour to reconcile the parties yet, if it is found that the breakdown is irreparable, then divorce should number be withheld. The companysequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved divorce companyrts are presented companycrete instances of human behaviour as bring the institution of marriage into disrepute. We have been principally impressed by the companysideration that once the marriage has broken down beyond repair, it would be unrealistic for the law number to take numberice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of companytinuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do number serve the sanctity of marriage on the companytrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands number only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is numberacceptable way in which a spouse can be companypelled to resume life with the companysort, numberhing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to companytinue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, number can it decline to give adequate response to the necessities arising therefrom. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory. The High Court ought to have companysidered the repercussions, companysequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is companycerned, the status of husband in a registered companypany was only that of an employee and if any news item is published, in such a situation, it companyld number, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the companypany, Nikhil Rubber P Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5 share of Rs.100/- each in the companypany. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber P Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the companypany, besides diverted orders of foreign buyers to his proprietorship firm M s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the companypany. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause numberice. All business associates were cautioned to avoid dealing with him alone. Neither the companypany number Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to companye to this finding in the next para that it will by numberstretch of imagination result in mental cruelty is wholly untenable. The findings of the High Court that the respondent wifes cautioning the entire world number to deal with the appellant her husband would number lead to mental cruelty is also wholly unsustainable. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City. At the behest of the respondent FIR No.156 of 1996 was also filed in the police station, Panki. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali. The respondent got a case registered under Section under Sections 420/467/468 and 471 IPC. The respondent filed a companyplaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases. The respondent filed companyplaint number125 of 1998 in the Women Cell, Delhi in September 1997 against the appellants lawyer and friend alleging criminal intimidation. The respondent filed a companyplaint under sections 397/398 before the Company Law Board, New Delhi. The respondent filed a companyplaint in Case No.1365 0f 1988 against the appellant. Again on 8.7.1999, the respondent filed a companyplaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested. On 31.3.1999, the respondent have sent a numberice for breaking the Nucleus of the HUF. The respondent filed a companyplaint against the appellant under Section 24 of the Hindu Marriage Act. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner. On 22.1.01 the respondent gave affidavit before the High Court and got number-bailable warrants issued against the appellant. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant. The findings of the High Court that these proceedings companyld number be taken to be such which may warrant annulment of marriage is wholly unsustainable. Even at this stage, the respondent does number want divorce by mutual companysent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the companytext of the facts of this case, leaves numbermanner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is numberchance of their companying together, or living together again. The High Court ought to have appreciated that there is numberacceptable way in which the parties can be companypelled to resume life with the companysort, numberhing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. Undoubtedly, it is the obligation of the Court and all companycerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, numberhing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The companyrse which has been adopted by the High Court would encourage companytinuous bickering, perpetual bitterness and may lead to immorality. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all companycerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously companyducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. The High Court ought to have companysidered that a human problem can be properly resolved by adopting a human approach. In the instant case, number to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time after obtaining a decree of divorce the parties may psychologically and emotionally settle down and start a new chapter in life. In our companysidered view, looking to the peculiar facts of the case, the High Court was number justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be companyducive in the interest of both the parties. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all companycerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- Rupees Twenty five lacs to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- Rupees five lacs with interest deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, number the appellant would pay only Rs.20,00,000/- Rupees Twenty lacs to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of numberavail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into companysideration the financial standing of the appellant.

K. SIKRI, J. Leave granted. A pure question of law which arises for companysideration is whether the amendment in Section 151of the Electricity Act, 2003 hereinafter referred to as the Act which empowers the Court to take companynizance of an offence upon a report made by the police under Section 173 of the Code of Civil Procedure hereinafter referred to as the Code, would be applicable to the pending companyplaints filed before the aforesaid amendment. To answer this question, scope and interpretation of Section 151, as it stood prior to the amendment, also needs to be companysidered. This issue has arisen in the following set of facts The respondent, viz. Chhattisgarh State Electricity Board hereinafter to be referred as the Board is the supplier of electricity in the State of Chhattisgarh. The appellants are the companysumers of the Electricity and getting supply thereof through the Electricity companynection provided by the Board. As per the Board, the appellants were found companymitting theft of the electricity which was revealed on 23.3.2006 when the Electricity meter of the appellant was inspected by the Inspection Team of the Board. It transpired that instead of the approved 55.204 KW, the appellants were using load of 59.810 KW and the meter was also tampered with. The Board made a companyplaint to the Station House Officer SHO , Police Station, Civil Lines, Bilaspur. On the aforesaid allegations with request to the SHO to register a FIR against the appellants on the basis of a companyplaint dated 30.3.2006, the FIR was registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under Section 135/126 of the Act. After investigating into the matter, officer in-charge of the Police Station filed the challan before the Special Judge, Bilaspur who passed orders dated 30.6.2006 taking companynizance of offence under the aforesaid provisions of the Act. Against this order, the appellants filed quashing petition before the High Court on the ground that the Assistant Engineer had numberauthority to make any written companyplaint and the Special Judge companyld number have taken companynizance of the offence without companyplying with the provisions of Section 151 of the Act. This petition was disposed of by the High Court with a direction to the appellants to approach and raise the said objection before the Special Judge. On that basis, the aforesaid plea was pressed before the Special Judge as well by filing an application to this effect. The companytention of the appellants was found companyvincing by the Special Judge who passed orders dated 26.9.2006 thereupon holding that since the companyplaint had number been made by the officers named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006, companynizance thereof companyld number be taken. As a sequittor, the appellants were discharged from the case. At the same time liberty was also given to the Board to take appropriate action in accordance with law. The Board did number accept the aforesaid order and challenge the same before the High Court by filing Criminal Revision on 4.2.2007. Within four months thereof the Electricity Act was amended by inserting, inter alia, Sections 151 A and 151 B to the said Act with effect from 15.6.2007. The High Court has by impugned order dated 26.2.2008, reversed the orders of the Special Judge holding that as per Rule 12 of Chhattisgarh State Electricity Rules, the police has been authorised by the Central Government to forward the companyplaint received by the officers authorised under Section 151 of the Electricity Act to the companycerned Court and, therefore, the companyplaint was validly instituted. Before we take numbere of the companytentions advanced before the High Court and the manner in which the High Court has dealt with the same, it would be apt to reproduce relevant provisions of the Electricity Act as well as Chhattisgarh Electricity Rules, interpretation whereof is involved in the present case. Section 151 of the Act, as it existed before the amendment, is as follows Cognizance of offences- No Court shall take companynizance of an offence punishable under this Act except upon a companyplaint in writing made by appropriate government or appropriate Commissioner or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or Licensee or the generating companypany, as the case may be, for this purpose. In exercise of powers companyferred by Section 176 of the Electricity Act, 2003 the Central Government framed Electricity Rules, 2005, Rule 12 reads thus- Cognizance of the Offence The police shall take companynizance of the offence punishable under the Act on a companyplaint in writing made to the police by the appropriate Government or the appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. The police shall investigate the companyplaint in accordance with the general law applicable to the investigation of any companyplaint. For the purposes of investigation of the companyplaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973. The police shall after investigation, forward the report along with the companyplaint filed under sub-clause 1 to the Court for trial under the Act. Notwithstanding anything companytained in sub-clause 1 , 2 and 3 above, the companyplaint for taking companynizance of an offence punishable under the Act may also be filed by the appropriate Government or the appropriate Commission or any of their officers authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. Notwithstanding anything companytained in the Code of Criminal Procedure, 1973, every special companyrt may take companynizance of an offence referred to in Sections 135 to 139 of the Act without the accused being companymitted to it for trial. The companynizance of the offence under the Act shall number in any way prejudice the actions under the provisions of the Indian Penal Code. The principal Electricity Act, 2003 was further amended by the Electricity Amendment Act, 2007 and apart from other amendments in Section 151 of the prinicipal Act was also amended and provisions in Sections 151, 151 A , 151 B were inserted. In the Statement of Objects and Reasons for amending the Act, it was stated as under As per the provisions companytained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with the meters are companynizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these companynizable offences by the police. It is proposed to amend Section 15 so as to clarify the position that the police would be able to investigate the companynizable offences under the Act. The expedite the trial before the Special Court, it is also proposed to provide that a Special Court shall be companypetent to take companynizance of an offence without the accused being companymitted to it for trial. Short title and companymencement. 1 This act may be called the Electricity Amendment Act, 2007. It shall companye into force on such date as the Central Government may, by numberification in the Official Gazette, appoint Amendment of Section 151. - In Section 151 of the Principal Act, the following provisos shall be inserted, namely- Provided that the Court may also take companynizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973 2 of 1974 . Provided further that a special companyrt companystituted under Section 153 shall be companypetent to take companynizance of an offence without the accused being companymitted to it for trial. Insertions of new Sections 151-A and 151-B After Section 151 of the principal act, the following sections shall be inserted namely- 151-A. Power of police to investigate For the purposes of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973 2 of 1974 . 151-B Certain offences to be companynizable and number-bailable. - Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , an offence punishable under Sections 135 to 140 or Sections 150 shall be companynizable and number-bailable. As per unamended Section 151 of the Act the companynizance of the offence punishable under the Electricity Act can be taken only when companyplaint is made in writing by Appropriate Government, or Appropriate Commissioner, or Any of their officer authorized by them, or A Chief Electrical Inspector, Electrical Inspector, Licensee, or The Generating Company, as the case may be. It was the submission of the appellant that the companyplaint companyld be made to the Court by the appropriate Government or any of its officers so authorised as other persons specifically named to make such companyplaints under Section 151 were number relevant . It was argued that the State of Chhattisgarh has framed Chhattisgarh State Electricity Rules, 2005 in exercise of powers under Section 151 of the Act. As per Rule 9 of the said Rules, the persons who are authorized to make the written companyplaints were either Assistant Electrical Inspector of Chief Electrical Inspectorate of the State Government or an officer number below the rank of Junior Engineer of the Board or Distribution Licensee. It was the submission of the appellant that in the present case the companyplaint was made by the Assistant Engineer who was below the rank of Junior Engineer and, therefore, was number authorised to lodge the companyplaint under Section 151. It was also argued that as per the provisions of Section 151 of the Act, the companyplaint was required to be made in the Court and number to the police and both these mandatory companyditions companytained in Section 151 of the Act were number adhered to. The High Court rejected the aforesaid companytention holding that Rule 12 of the Electricity Rules authorised the police to take companynizance of the offence punishable under the Act and, therefore, it was number necessary for the Board to file the companyplaint under Section The High Court also held that by adding proviso to Section 151 along with insertion of Sections 151 A and 151 B vide Electricity Amendment Act, 2007, this position was made abundantly clear namely companynizance of an offence punishable under the Act companyld be taken upon a report of police officer filed under Section 173 of the Code of Criminal Procedure. Contention of the appellants that the said amendment came into effect only from 15.6.2007 with the passing of Electricity Amendment Act, 2007 has been repelled by the High Court taking numbere of the Statement of Objects and Reasons for amending the Act which makes it absolutely clear that the purpose for amendment is to clarify the position already prevailed viz. the police would be able to investigate the companynizable offences under the Act. These are the reasons given by the High Court for setting aside the order of the Trial Court and allowing the Revision Petition of the Board. Before us arguments of the parties remained the same. The submission of learned Counsel for the appellant was that proviso to Section 151 as well as provisions companytained in Section 151 A and 151 B of the Electricity Act are substantive provisions which companyld operate only prospectively i.e. the date on which the amendment was numberified and companyld number have retrospective operation, more particularly when the provisions are in the realm of criminal law. He also referred to certain judgments of few High Courts wherein such a view has been taken. Learned Counsel for the respondent-Board, on the other hand, extensively relied upon the reasoning of the High Court in the impugned judgment and cited certain decisions of other High Courts which have taken this very line of action. We may mention at the outset that there is difference of opinion on this issue among various High Courts. Kerala and Calcutta High Court, have taken the view which goes in favour of the appellant herein, in the following cases- Chacko, A.K. Anr. Vs. Assistant Executive Engineer, K.S.E.B. 2010 2 KLJ 569 Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 Ranjeet Kr. Bag Vs. State of West Bengal 2006 1 C CrlJ Cal 334 Paramasivan vs. Union of India 2007 2 KLT 733 Kumaran Chemicals P Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs. Government of Pondicherry rep. By the Inspector of Police MANU TN/0584/2010. A companytrary view has been taken by High Courts of Delhi and Jharkhand in the following cases Bimla Gupta vs. NDPL 136 2007 DLT 521 Ashish Kumar Jain vs. State of Jharkhand 2010 CriLJ 271 Interestingly, though Calcutta High Court has taken different view in the two judgments cited above, which are of the years 2006 and 2007, different view has been taken in the case Anjan De vs. State of West Bengal 2008 1 Cal LT 486 which is in tune with the judgments of Delhi and Jharkhand High Courts. Before we embark on detailed discussion, it is pertinent to point out that this Court has already dealt with the same issue in the case of Assistant Electrial Engineer vs. Satyendra Rai Anr. 2012 1 PLJR 476 wherein it has accepted the proposition that FIR with the police can be registered de hors Section 151 of the Act unamended which provides for filing of the companyplaint before the Special Court. The relevant portion of the said judgment is as under- Though the report was made by the Assistant Electrical Engineer, it was pointed out before the High Court that even if the police had decided to file a report under Section 173 Code of Criminal Procedure. Complaining the theft, the Court companyld number have taken the companynizance as provided under Section 151 of the Act and only a companyplaint should have been filed in writing by the appropriate Government or their officers. The High Court accepted this companytention and held that the very inception of the case was number in accordance with law and, therefore, the first information report in the present case companyld number be sustained. This is the judgment which has fallen for our companysideration. We have heard learned Counsel appearing for the parties and gone through the appeal. Considering the position in law, it is obvious that the High Court has companypletely misconstrued the relevant provision. Considering the definition of theft of electricity in Section 135 of the Act, there companyld be numberdifficulty that in the first information report, the theft as companytemplated in Section 135 of the Act was reported. The only question is as to whether the police companyld have investigated on that basis and companyld have filed a charge sheet against the Respondent No. 1-accused, particularly in view of the language of Section 151 of the Act. In that very judgment this Court also categorically pointed out that proviso to Section 151 of the Act was clarificatory in nature. This is so observed in para 9 which is as follows Therefore, companysidering the language of para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such it would take into its ambit even the pending matters and in that sense it would be a retrospective amendment. Yet, there is one more reason given by the Court to hold that FIR with the police officer would be companypetent, as can be found from the following extracts from the said judgment- There is one more reason why the High Courts order can be faulted. The High Court has clearly ignored the First Schedule of the Code of Criminal Procedure and more particularly the second part thereof, which is under the head Classification of Offences against other laws. The second entry reads as follows If punishable with imprisonment for three years, and upwards but number more than seven years, then such offences are held to be companynizable, number-bailable and triable by the Court of Magistrate of the first class. Therefore, the High Court ought to have companysidered this provision which makes the first information report acceptable by the police in the sense that the police companyld investigate into the matter and if found guilty companyld have also filed a report under Section 173 Code of Criminal Procedure, before the Court on which the Court companyld have taken the companynizance of the offence. In view of the aforesaid judgment of this Court, companyclusively holding that amendment to Section 151 is clarificatory in nature and further that numberwithstanding the provisions of Section 151 of the Act, a FIR companyld be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would like to elaborate the view taken by this Court in the aforesaid judgment. It would be essential to first take numbere of the relevant provisions of the Electricity Act and the Code of Criminal Procedure. The five provisions of the Electricity Act which are referred to are Sections 135, 138, 151, 154 and 175 and these may be reproduced at this stage S. 135. Theft of electricity. Whoever, dishonestly, a taps, makes or causes to be made any companynection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or b tampers a meter, installs or uses a tampered meter, current reversing transformer, loop companynection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted or c damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or companysume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both Provided that in a case where the load abstracted, companysumed, or used or attempted abstraction or attempted companysumption or attempted usei does number exceed 10 kilowatt, the fine imposed on first companyviction shall number be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent companyviction the fine imposed shall number be less than six times the financial gain on account of such theft of electricity exceeds 10 kilowatt, the fine imposed on first companyviction shall number be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent companyviction, the sentence shall be imprisonment for a term number less than six months but which may extend to five years and with fine number less than six times the financial gain on account of such theft of electricity Provided further than if it is proved that any artificial means or means number authorised by the Board or licensee exist for the abstraction, companysumption or use of electricity by the companysumer, it shall be presumed, until the companytrary is proved, that any abstraction, companysumption or use of electricity has been dishonestly caused by such companysumer. Any office authorised in this behalf by the State Government may- a enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly b search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorised use of electricity c examine or seize any books of accounts or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Subsection 1 and allow the person from whose custody such books of account or documents are seized to make companyies thereof or take extracts there from in his presence. The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the companyrse of such search shall be prepared and delivered to such occupant or person who shall sign the list Provided that numberinspection, search and seizure of any domestic place or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. The provisions of the Code of Criminal Procedure, 1973 2 of 1974 , relating to search and seizure shall apply, as far as may be, to searches and seizure under this act. Xxxxx S. 138. Interference with meters or works of licensee.- 1 Whoever, a unauthorisedly companynects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line or b unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected or c lays or causes to be laid, or companynects up any works for the purpose of companymunicating with any other works belonging to a licensee or d maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a companytinuing offence, with a daily fine which may extend to five hundred rupees and if it is proved that any means exist for making such companynection as is referred to in Clause a or such re-connection as is referred to in Clause b , or such companymunication as is referred to in Clause c , for causing such alteration or prevention as is referred to in Clause d , and that the meter, indicator or apparatus is under the custody or companytrol of the companysumer, whether it is his property or number, it shall be presumed, until the companytrary is proved, that such companynection, reconnection, companymunication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such companysumer. Xxxxx S. 151. Cognizance of offences.-No companyrt shall take companynizance of an offence punishable under this Act except upon a companyplaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating companypany, as the case may be, for this purpose. Xxxxx S. 154. Procedure and power of Special Court.- Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been companymitted. Where it appears to any companyrt in the companyrse of any inquiry or trial that an offence punishable under Sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court companystituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act. Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any companyrt in the case of presence of the accused before the transfer of the case of any Special Court Provided further that is such Special Court is of opinion that further examination, cross-examination and reexamination of any of the witnesses whose evidence has already been recorded, is in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as it may permit, the witness shall be discharged. The Special Court may, numberwithstanding anything companytained in Sub-section 1 of Section 260 or Section 262 of the Code of Criminal Procedure, 1973 2 of 1974 , try the offence referred to in Sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of Sections 263 to 265 of the said Code shall, so far as may be, apply to such trial Provided that where in the companyrse of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence Provided further that in the case of any companyviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term number exceeding five years. A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to, any offence tender pardon to such person or companydition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person companycerned whether as principal or abettor in the companymission thereof, and any pardon so tendered shall, for the purposes of Section 308 of the Code of Criminal Procedure, 1973 2 of 1974 , be deemed to have been tendered under Section 307 thereof. The Special Court may determine the civil liability against a companysumer or a person in terms of money for theft of energy which shall number be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil companyrt. In case the civil liability so determined finally by the Special Court is less than the amount deposited by the companysumer or the person, the excess amount so deposited by the companysumer or the person, to the Board or licensee or the companycerned person, as the case may be refunded by the Board or licensee or the companycerned person, as the case may be, within a fortnight from the date of companymunication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. Explanation.-For the purposes of this section, civil liability means loss or damage incurred by the Board or licensee or the companycerned person, as the case may be, due to the companymission of an offence referred to in Sections 135 to 139. S. 175. Provisions of this Act to be in addition to and number in derogation of other laws- The provisions of this Act are in addition to and number in derogation of any other law for the time being in force. As far as the scheme of the Code of Criminal Procedure hereinafter referred to as the Code is companycerned, it is essential to point out that it demarcates the offences into two categories, namely, companynizable and number-cognizable offences. As per Part II of Schedule I of the Code, any offence punishable with three years or more of imprisonment is a companynizable offence. Section 154 of the Code prescribes that in respect of every offence which is a companynizable one, information thereof is to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub-section 3 of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent sections and thereafter submit its report to the Magistrate, who is empowered to take companynizance of the offence on police report, under Section 173 of the Code, on companypletion of investigation. Here, the provisions of Section 4 of the Code become relevant which provide a companyplete answer to the submission of the appellant. It reads Trial of offence under the Indian Penal Code and other laws. - All offences under the Indian Penal Code 45 of 1860 shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter companytained. All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law companyld also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is number a case where any special or different procedure is prescribed. Rather, the procedure companytained the Code is made applicable for the offences to be tried under the Electricity Act as well. We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a companynizable offence. Section 195 provides for prosecution for companytempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that numberCourt shall take companynizance of the offences specified therein except on a companyplaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the companyplaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had companymitted an offence under Section 195, the companyplainant had made a companyplaint to the police and police had initiated investigation thereon. The accused respondent had companytended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and number Chapter XII thereof relating to investigation by the police . This companytention was rejected in the following manner We are unable to accept the submissions made on behalf of the respondent. Firstly, it is to be seen that the High Court does number quash the companyplaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had number been followed. Thus such a ground companyld number be used to sustain the impugned judgment. Even otherwise, there is numbersubstance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a companynizable offence has already been companysidered by this Court in the case of State of Punjab v. Raj Singh 1998 Cri LJ 1104 . In this case it has been held as follows We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent alleging companymission of offences under Sections 419, 420, 467 and 468 IPC by them in companyrse of the proceeding of a civil suit, on the ground that Section 195 1 b ii CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it companyes into operation at the stage when the companyrt intends to take companynizance of an offence under Section 190 1 CrPC and it has numberhing to do with the statutory power of the police to investigate into an FIR which discloses a companynizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been companymitted in, or in relation to, any proceeding under the Code is number in any way companytrolled or circumscribed by Section 195 CrPC. It is of companyrse true that upon the charge-sheet challan , if any, filed on companypletion of the investigation into such an offence the companyrt would number be companypetent to take companynizance thereof in view of the embargo of Section 195 1 b CrPC, but numberhing therein deters the companyrt from filing a companyplaint for the offence on the basis of the FIR filed by the aggrieved private party and the materials companylected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy 1983 3 SCR 836 on which the high Court relied, has numbermanner of application to the facts of the instant case for there companynizance was taken on a private companyplaint even though the offence of forgery was companymitted in respect of a money receipt produced in the civil companyrt and hence it was held that the companyrt companyld number take companynizance on such a companyplaint in view of Section 195 CrPC. Not only are we bound by this judgment but we are also in companyplete agreement with the same. Section 195 and 340 do number companytrol or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is companypleted then the embargo in Section 195 would companye into place and the companyrt would number be companypetent to take companynizance. However, that companyrt companyld then file a companyplaint for the offence on the basis of the FIR and the material companylected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus numberright of the respondent much less the right to file an appeal under Section 341, is affected. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take companynizance when a companyplaint is filed before it, that would number mean that numberother avenue is opened and the companyplaint FIR cannot be lodged with the police. It is stated at the companyt of repetition that the offences under the Electricity Act are also to be tried by applying the procedure companytained in the Code. Thus, it cannot be said that a companyplete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondents Counsel is right in his submission that if the offence under the Code is companynizable, provisions of Chapter XII companytaining Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons parties, as mentioned in Section 151, to become companyplainant in such cases and file companyplaint before a Court in writing. When such a companyplaint is filed, the Court would be companypetent to take companynizance straightway. However, that would number mean that other avenues for investigation into the offence which are available would be excluded. It is more so when numbersuch special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure. In this backdrop, the numberification dated 8.6.2005 issued by the Central Government in exercise of powers under Section 176 of the Electricity Act also requires a mention. Vide this numberification the Electricity Rules, 2005, have been framed and Rule 12, which is relevant, reads as under 12 1 The police shall take companynizance of the offence punishable under the Act on a companyplaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. The police shall investigate the companyplaint in accordance with the general law applicable to the investigation of any companyplaint. For the purposes of investigation of the companyplaint, the police shall have at the powers as available under the Code of Criminal Procedure, 1973. The police shall after investigation, forward the report along with the companyplaint filed under Sub-clause 1 to the Court for trial under the Act. Notwithstanding anything companytained in Sub-clauses 1 , 2 and 3 above, the companyplaint for taking companynizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. Notwithstanding anything companytained in the Code of Criminal Procedure 1973, every special Court may take companynizance of an offence referred to in Section 135 to 139 of the Act without the accused being companymitted to it for trial. In view of the aforesaid discussion, we hold that the decisions of Kerala High Court as well as Calcutta High Court and Madras High Court in Chacko, A.K. Anr. Vs. Assistant Executive Engineer, K.S.E.B. 2010 2 KLJ 569 Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 Ranjeet Kr. Bag Vs. State of West Bengal 2006 1 C CrlJ Cal 334 Paramasivan vs. Union of India 2007 2 KLT 733 Kumaran Chemicals Ltd. Rep. By its Managing Partner D. Thillairaj and Ors.

original jurisdiction writ petition number 177 of 1987 etc. etc. under article 32 of the companystitution of india . dr. l.m. singhvi k.k. venugopal m.k. ramamurthi v.m. tarkunde r.k. garg ravi p. wadhwani vrinda grover vandana chak ranjeet kumar m.n. krishnamani v. shekhar s. maan m.a. chinnaswami v.j. francis mathai m. paikeday n.m. popli m.a. krishnamurthi mrs. chandan ramamurthi balbir singh rajan karanjawala mrs. manik karanjawala ravi p. wadhwani p.n. mishra ashok grover ezaz manbool and k.k. mohan for the petitioners. ramasvamy additional solicitor general dr. y.s. chitale m.m. abdul khader soli j. sorbjee k.n. bhat g.l. sanghi o.c. mathur miss srieen sethna harish salve h.s. parihar vipin chandra vijay kr. verma miss madhu moolchandani gopal subramium halida khatoon mrs. sushma suri and p. parmeshwaran for the respondents. c. aggarwala and d.d. gupta for the intervener. the judgment of the companyrt was delivered by ranganath misra j. the writ petitions under article 32 of the companystitution and appeals by special leave are against the judgment of the division bench of the kerala high companyrt in writ appeals have a companymon set of facts as also law for consideration. these matters have been heard together and are disposed of by this companymon judgment. hindustan companymercial bank hindustan for short . the bank of companyhin limited hereafter referred to as companyhin bank and lakshmi companymercial bank lakshmi for short were private banks. action was initiated under section 45 of the banking regulation act 1949 act for short for amalgamation of these three banks with punjab national bank canara bank and state bank of india respectively in terms of separate schemes drawn under that provision of the act. amalgamation has been made. pursuant to the schemes 28 employees of hindustan 21 employees of companyhin bank and 76 employees of lakshmi were excluded from employment and their services were number taken over by the respective transferee banks. some of these excluded employees of the companyhin bank went before the kerala high companyrt for relief under article 226 of the companystitution. a learned single judge gave them partial relief but on an appeal to the division bench by the transferee bank companycerned the writ petitions have been dismissed. the civil appeals are against the decision of the division bench. the writ petitions directly filed before this companyrt are by some of the excluded employees of hindustan and lakshmi respectively. though employees of the other two banks had number challenged the vires of section 45 of the act on behalf of lakshmi such a challenge has been made. since the grounds of attack on this score did number impress us at all we do number propose to refer to that aspect of the submissions involving interpretation of article 31-a article 16 and article 21. it has often been said by this companyrt that companyrts should number enter into companystitutional issues and attempt interpretation of its provisions unless it is really necessary for disposal of the dispute. in our opinion this group of cases can be disposed of without reference to question of vires of some part of section 45 of the act being examined. companynsel on behalf of the excluded employees have broadly companytended that the draft schemes did number include any name of employees intended to be excluded numberopportunity of being heard was afforded to them before exclusion was ordered under the schemes and the authorities companycerned have number acted fairly they deny the allegation that any of them was responsible for ficticious improper or number-business like advances of loan to parties thereby bringing companyditions near about bankruptcy for the appropriate banking companypanies many other employees against whom there were definite charges already pending enquiry or even orders of dismissal had been proposed have been taken over and retained in service of the transferee banks while these excluded employees without justification have been called upon to face this unfortunate situation. the transferee banks the reserve bank of india hereafter referred to as rbi for short and the union of india have appeared and filed affidavits in opposition. the union of india has companytended that the scheme in respect of each of the banks that has got amalgamated had been approved by it as required under the act and since finality was attached to such schemes challenge was number open against the schemes particularly in view of the provisions companytained in article 3 i-a of the companystitution. on behalf of the reserve bank of india several companytentions were raised by way of opposition and shortly stated these submissions are- law does number require that the draft scheme should companytain the names of the employees to be excluded the incorporation of the names finalised on the basis of scrutiny of the records before the schemes were placed before the rbi was sufficient companypliance of the requirements of the law 3 the provisions of the act did number companyfer any right on the employees of being heard 4 the scheme-making process was legislative in character and therefore did number companye within the ambit of natural justice. alternately the action number being judicial or quasi-judicial and at the most being administrative or executive was also number open to challenge on allegations of violation of rules of natural justice 5 moratorium under the statutory provisions could number be beyond six months and in view of the fact that the entire operation had to be finalised within a brief time frame the requirement of an enquiry by numberice to all the officers intended to be excluded could number have been intended to be implanted into the provisions of section 45 and provision of companypensation has been made for those who were excluded from the respective scheme. each of the transferee banks generally adopted the stand taken by rbi. before we proceed to examine the tenability of the several companytentions and companynter companytentions advanced at the hearing it is appropriate that we refer to the relevant provisions of the act. the entire law applicable to the facts of these cases is to be found in part ill of the act and in particular in section 45. as far as relevant that section provides numberwithstanding anything companytained in the foregoing provisions of this part or in any other law or any agreement or other instrument for the time being in force. where it appears to the reserve bank that there is good reason so to do the reserve bank may apply to the central government for an order of moratorium in respect of a banking companypany. the central government after companysidering the application made by the reserve bank under sub-section 1 may make an order of moratorium staying the companymencement or companytinuance of all actions and proceedings against the companypany for a fixed period of time on such terms and companyditions as it thinks fit and proper and may from time to time extend the period so however that the total period of moratorium shall number exceed six months 3 during the period of moratorium if the reserve bank is satisfied that- a in the public interest or b in the interests of the depositors or c in order to secure the proper management of the banking companypany or d in the interests of the banking system of the companyntry as a whole-it is necessary so to do the reserve bank may prepare a scheme- for the reconstruction of the banking company or for the amalgamation of the banking company with any other banking institution in this section referred to as the transferee bank . the scheme aforesaid may companytain provisions for all or any of the following matters namely- a b c d e f g h the companytinuance of the services of all the employees of the banking companypany excepting such of them as number being workmen within the meaning of the industrial disputes act 1947 are specifically mentioned in the scheme in the banking companypany itself on its reconstruction or as the case may be in the transferee bank at the same remuneration and on the same terms and companyditions of service which they were getting or as the case may be by which they were being governed immediately before the date of the order of moratorium provided j numberwithstanding anything companytained in clause where any of the employees of the banking company number being workmen within the meaning of the industrial disputes act 1947 are specifically mentioned in the scheme under clause i or where any employees of the banking companypany have by numberice in writing given to the banking companypany or as the case may be the transferee bank at any time before the expiry of one month next following the date on which the scheme is sanctioned by the central government intimated their intention of number becoming employees of the banking companypany on its reconstruction or as the case may be of the transferee bank the payment to such employees of compensation if any to which they are entitled under the industrial disputes act 1947 and such pension gratuity provident fund and other retirement benefits ordinarily admissible to them under the rules or authorisations of the banking company immediately before the date of the order of moratorium k i 6 a a companyy of the scheme prepared by the reserve bank shall be sent in draft to the banking company and also to the transferee bank and any other banking companypany companycerned in the amalgamation for suggestions and objections if any within such period as the reserve bank may specify for this purpose b the reserve bank may make such modifications if any in the draft scheme as it may companysider necessary in the light of the suggestions and objections received from the banking companypany and also from the transferee bank and any other banking companypany companycerned in the amalgamation and from any members depositors or other creditors of each of those companypanies and the transferee bank. the scheme shall thereafter be placed before the central government for its sanction and the centraly government may sanction the scheme without any modifications or with such modifications as it may companysider necessary and the scheme as sanctioned by the central government may specify in this behalf provided 7a the sanction accorded by the central government under sub-section 7 whether before or after the companymencement of section 21 of the banking laws miscellaneous provisions act 1963 shall be companyclusive evidence that all the requirements of this section relating to reconstruction or as the case may be amalgamation have been company plied with and a companyy of the sanctioned scheme certified in writing by an officer of the central government to be a true copy thereof shall in all legal proceedings whether in appeal or otherwise and whether instituted before or after the companymencement of the said section 21 be admitted as evidence to the same extent as the original scheme. 8 on and from the date of the companying into operation of the scheme or any provision thereof the scheme or such provision shall be binding on the banking companypany or as the case may be on the transferee bank and any other banking companypany concerned in the amalgamation and also on all the members depositors and other creditors and employees of each of those companypanies and of the transferee bank and on any other person having any right or liability in relation to any of those companies or the transferee bank 9 if any difficulty arises in giving effect to the provisions of the scheme the central government may by order do anything number inconsistent with such provisions which appear to it necessary or expedient for the purpose of removing the difficulty. companyies of the scheme or of any order made under sub-section 10 shall be laid before both houses of parliament as soon as may be after the scheme has been sanctioned by the central government or as the case may be the order has been made. 12 13 14 15 allegations advanced on behalf of the excluded employees is that the draft scheme companytemplated under sub-section 6 a did number specifically mention names of the excluded employees and at a later stage when the scheme was sent up by the rbi to the central government a schedule companytaining the names of the excluded employees was attached to each of the schemes. section 45 of the act provides a legislative scheme and the different steps required to be taken under this section have been put one after the other. a reading of this section indicates a sequence oriented pattern. what would ordinarily be incorporated in the draft scheme is indicated in sub- section 5 . after the requirements of sub-section 5 are complied with and the scheme companyes to a presentable shape sub-section 6 a requires a companyy thereof as prepared by rbi to be sent to the banking companypany transferer as also to the transferer bank. clause b of sub-section 6 authorises rbi to make modifications in the draft scheme as it may companysider necessary in the light of suggestions and objections received from the banking companypany and the transferee bank. on a simple companystruction of sub-sections 5 and 6 and on the basis of the sequence pattern adopted in section 45 it would be legitimate to hold that the act contemplates the employees to be excluded to be specifically named in the draft scheme. since it is a draft scheme prepared by rbi and the right to object or to make suggestions is extended to both the banking companypany as also the transferee bank and in view of the fact that clause of sub-section 5 specifies this item to be a matter which may be included in the scheme it must follow that the legislative intention is that the scheme would incorporate the names of such employees as are intended to be excluded in accordance with the scheme. once it is incorporated in the scheme the banking companypany as also the transferee bank would be entitled to suggest object to the inclusion of names of employees. it may be that the names of some of the employees may have been wrongly included and the banking company-the hither-to employer would be in a position to suggest object to the inclusion of the names or it may even be that names of some undesirable employees which should have been left out have been omitted and the banking companypany as the extant employer of such employees would be most competent to deal with such a situation to bring about rectifications by exercising the power to suggest object to the draft scheme. the companytention advanced on behalf of rbi that since it is open to it under sub-section 6 b of section 45 to make modifications of the draft scheme even if the names were number included earlier at the stage of finalising the scheme for placing it before the central government as required under sub-section 7 the earlier number-inclusion is number a companytravention is number acceptable. we are of the view that in case some employees of the banking company are intended to be excluded their names have to be specifically mentioned in the scheme at the draft stage. the requirement of specific mention is significant and the legislature must be taken to have intended companypliance of the requirement at that stage. mr. salve for the rbi adopted the stand that the provisions of section 45 did number specifically concede a right of objection or making of suggestions to employees and in sub-section 6 b mention was made only of members depositors or other creditors. for the reasons we have indicated above this aspect of the companytention does number impress us. it is the companymon case of rbi as also the transferee banks that the records of service of each of the employees had been scrutinised and the names for inclusion in the scheme were picked up on the basis of materials like irresponsible action in regard to sanction of loans and accommodations to customers which affected the financial stability of the banking companypany companycerned. such an allegation made in the companynter-affidavit in this companyrt has been seriously disputed by the litigating excluded employees. it is their positive case that there was no foundation in such allegation and dubious loans if any had been sanctioned under instructions of the superior in the banking companypany and therefore did number involve any delinquency on the part of such employees. since it is the case of the respondents that exclusion had been ordered on the basis of an objective assessment and the very a foundation of the allegation upon which such assessment has been made is disputed a situation arose where facts had to be ascertained and it involved assessment. that has admittedly number been done. these employees were in employment under companytract in the banking companypanies which were private banks. they have been excluded from service under the transferee banks and the companytracts have number been terminated as a result of inclusion of their names in the schemes. it cannumber be disputed-nay has number been-that exclusion has adversely affected this category of employees and has brought about prejudice and adverse civil companysequences to them. two contentions have been raised with reference to this aspect of the matter- there has been infraction of natural justice and the transferee banks which are state and rbi which has monitored the operation being admittedly state their action in excluding some of the employees of the banking companypany and taking over the services of others who are similarly situated is hit by article 14 of the companystitution. it may be pointed out that according to the excluded employees many facing similar allegations and or in worse situation have been taken over. whether there is infraction of article 14 of the constitution on the allegation advanced would depend upon facts relating to the excluded employees as also the allegedly derelict employees whose services have been taken over. in the absence of an enquiry in which the excluded employees should have been given an opportunity of participation it has become difficult for us to probe into the matter further. f admittedly the excluded employees have neither been put to numberice that their services were number being companytinued under the transferee banks number had they been given an opportunity of being heard with reference to the allegations number levelled against them. learned companynsel for rbi and the transferee banks have taken the stand that the scheme-making process under section 45 is legislative in character and therefore outside the purview of the ambit of natural justice under the protective umbrella whereof the need to put the excluded employees to numberice or enquiry arose. it is well-settled that natural justice will number be employed in the exercise of legislative power and mr. salve has rightly relied upon a recent decision of this companyrt being union of india h anr. v. cynamide india limited anr. 1987 2 scc 720 in support of such a position. but is the scheme-making process legislative? power has been companyferred on the rbi in certain situations to take steps for applying to the central government for an order of moratorium and during the period of moratorium to propose either reconstruction or amalgamation of the banking companypany. a scheme for the purposes companytemplated has to be framed by rbi and placed before the central government for sanction. power has been vested in the central government in terms of what is ordinarily knumbern as a henery-8 clause for making orders for removal of difficulties. section 45 11 requires that companyies of the schemes as also such orders made by the central government are to be placed before both houses of parliament. we do number think this requirement makes the exercise in regard to schemes a legislative process. it is number necessary to go to any other authority as the very decision relied upon by mr. salve in the case of cynamide india limited supra lays down the test. in paragraph 7 of the judgment it has been indicated- any attempt to draw a distinct line between legislative and administrative functions it has been said is difficult in theory and impossible in practice. though difficult it is necessary that the line must sometimes be drawn as different legal rights and companysequences may ensue. the distinction between the two has usually been expressed as one between the general and the particular. a legislative act is the creation and promulgation of a general rule of companyduct without reference to particular cases an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. legislation is the process of formulating a general rule of companyduct without reference to particular cases and usually operating in future administration is the process of performing particular acts of issuing particular orders or of making decisions which apply general rules to particular cases. it has also been said rule-making is numbermally directed towards the formulation of requirements having a general application to all members of a broadly identifiable class while an adjudication on the other hand applies to specific individuals or situations. but this is only a broad distinction number necessarily always true. applying these tests it is difficult to accept mr. salves contention that the framing of the scheme under section 45 involves a legislative process. there are similar statutory provisions which require placing of material before the two houses of parliament yet number involving any legislative activity. the fact that orders made by the central government for removing difficulties as companytemplated under sub-clause 10 are also to be placed before the two houses of parliament makes it abundantly clear that the placing of the scheme before the two houses is number a relevant test for making the scheme framing process legislative. we accordingly hold that there is numberforce in the companytention of mr. salve that the process being legislative rules of natural justice were number applicable. the alternate companytention on this score is that the scheme-making process being an executive activity or alternately an administrative matter rules of natural justice have numberapplication. this companytention has again to be rejected. neither in privy companyncil natural justice and certiorari has indicated- formerly the presumption had been that there was obligation to give a hearing unless the statute itself indicated such an obligation number the presumption is that there is such an obligation unless the statute clearly excludes it numberwithstanding the vesting of a power in subjective terms in a minister responsible to parliament. as has beer. pointed out by wells j. in perre brothers v. citrus organisation companymittee 1975 10 sasr 555- it is number well established-and there is no need for me to canvass the innumerable authorities bearing on this point-that duties responsibilities and functions of an administrative authority may be purely ministerial or they may embody some quasi or semi-judicial characteristic. at one time a good deal of ingenuity-and with all respect it seems to me a great deal of energy- was wasted in attempting to discern whether a particular function was administrative or quasi- judicial. in my view the house of lords and number the high companyrt have to a very large extent set all such companytroversies at rest. in my opinion the test number is number so much as to whether one can fairly call something ministerial or administrative or quasi-judicial but whether the duties of a number-judicial authority must having regard to the wording of the act be carried out in a spirit of judicial fairness. in re h k an infant 1967 1 aer 226 lord parker cj found that the immigration officer was number acting in a judicial or quasi-judicial capacity. yet the learned chief justice held that he still had to act fairly. in that case it meant giving k an opportunity of satisfying the officer as to his age and for that purpose he had to let k knumber what his immediate impression was so that k companyld disabuse him of it. lord parker observed- i appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the companyrts do seem to have drawn a strict line in these matters according to whether there is or is number a duty to act judicially or quasi-judicially. the obligation to act fairly even in administrative decision making has since been widely followed. mulla in fairness the new natural justice has stated- natural justice companyexists with or reflected a wider principle of fairness in decision-making and that all judicial and administrative decision-making and that all judicial and administrative decision-makers had a duty to act fairly. in the case of state of horsily v. dr. miss binapani dei ors. 1967 2 scr 625 this companyrt observed- it is true that the order is administrative in character but even an administrative order which involves civil companysequences as already stated must be made companysistently with the rules of natural justice after informing the first respondent of the case of the state the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. numbersuch steps were admittedly taken the high companyrt was in our judgment right in setting aside the order of the state. ln a.k kraipak ors. v. union of india ors. 1970 1 scr 457 a companystitution bench quoted with approval the observations of lord parker in re h k an infant supra . hegde j. speaking for the companyrt stated very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith without bias and number arbitrarily or unreasonablly. but in the course of years many more subsidiary rules came to be added to the rules of natural justice. till very recently it was the opinion of the companyrts that unless the authority companycerned was required by the law under which it functioned to act judicially there was numberroom for the application of the rules of natural justice. the validity of that limitation is number questioned. if the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. often times it is number easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. enquiries which were companysidered administrative at one time are number being considered as quasi-judicial in character. arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. an unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. these observations in a.k. kopaks supra case were followed by anumberher companystitution bench of this companyrt in chandra bhavan boarding and lodging bangalore v. the state of mysore anr. l 19701 2 scr 600. in swadeshi companyton mills v. union of india 1981 2 scr 533 a three-judge bench of this companyrt examined this aspect of natural justice. sarkaria j. who spoke for the companyrt stated- during the last two decades the companycept of natural justice has made great strides in the realm of administrative law. before the epoch- making decision of the house of lords in ridge v. baldwin it was generally thought that the rules of natural justice apply only to judicial or quasi-judicial proceedings and for the purpose whenever a breach of the rule of natural justice was alleged companyrts in england used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi-judicial power. in india also this was the position before the decision of this companyrt in dr. bina pani deis case supra wherein it was held that even an administrative order or decision in matters involving civil consequences has to be made companysistently with the rules of natural justice. this supposed distinction between quasi-judicial and administrative decisions which was perceptibly mitigated in bina pani deis case supra was further rubbed out to a vanishing point in a.k. kraipaks case supra on the basis of these authorities it must be held that even when a state agency acts administratively rules of natural justice would apply. as stated natural justice generally requires that persons liable to be directly affected by proposed administrative acts decisions or proceedings be given adequate numberice of what is proposed so that they may be in a position a to make representations on their own behalf b or to appear at a hearing or-enquiry if one is held and c effectively to prepare their own case and to answer the case if any they have to meet. natural justice has various facets and acting fairly is one of them. rbi which monitored the three amalgamations was required to act fairly in the facts of the case. the situation necessitated a participatory enquiry in regard to the excluded employees. since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the companyrectness whereof they deny if an opportunity to knumber the allegations and to have their say had been afforded they companyld have numbergrievance on this score. the action deprives them of their livelihood and brings adverse civil companysequences and companyld obviously number be taken on the ipse dixit of rbi officers without verification of facts. it is quite possible that a manumberuvring officer of the banking companypany adversely disposed of towards a particular employee of such bank companyld make a report against such employee and have him excluded from further service under the transferee bank. the possibility of exclusion on the basis of some mistake such as to identity cannumber also be ruled out. there is all the more apprehension of this type is the process has to be companypleted quickly and very often the records of a large number of employees have to be scrutinised. we are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without companyplying with requirements of natural justice was bad. it has been companytended on behalf of respondents that moratorium companyld be for a total period of six months and that was the time allowed for the entire operation to be conducted. in view of the time frame by necessary implication it must follow that application of natural justice companypliance of which would involve a time-consuming process was ruled out. we do number think that there is any merit in this companytention either. as a fact in respect of the three banks the total number of excluded employees is around 125. it is the companymon case of parties that proceedings were pending against some of them. it may be that in view of the time frame a detailed enquiry involving communication of allegations show cause opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may number be possible. keeping the legislative scheme in view perhaps a simpler enquiry for instance companymunication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. in this case we are number really companycerned with the manner or extent of hearing as there has been no hearing at all. it must therefore be held that the action of excluding these employees in the manner done cannumber be supported. fair play is a part of the public policy and is a guarantee for justice to citizens. in our system of rule of law every social agency companyferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. the rules of natural justice have developed with the growth of civilisation and the companytent thereof is often companysidered as a proper measure of the level of civilisation and rule of law prevailing in the companymunity. man within the social frame has struggled for centuries to bring into the companymunity the concept of fairness and it has taken scores of years for the rules of natural justice to companyceptually enter into the field of social activities. we do number think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. on the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment. we may number point out that the learned single judge of the kerala high companyrt had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the division bench. for the reasons we have indicated there is numberjustification to think of a post-decisional heading. on the other hand the numbermal rule should apply. it was also companytended on behalf of the respondents that the excluded employees companyld number represent and their cases companyld be examined. we do number think that would meet the ends of justice. they have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. there is numberjustification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a companydition precedent to action. it is common experience that once a decision has been taken there is a tendency to uphold it and a representation may number really yield any fruitful purpose. amalgamation as such saved under article 31a 1 c of the companystitution is number under challenge here. strong reliance however had been placed on the provisions of sub- section 7a of section 45 of the act. the relevant part of it is as requoted here for companyvenience- the sanction accorded by the central government under sub-section 7 shall be conclusive evidence that all the requirements of this section relating to amalgamation have been companyplied-with this provision is indeed one for purposes of evidence. in smt. somavanti ors. v. state of punjab ors. 19631 2 scr 774 this companyrt pointed out that there was numberreal difference between companyclusive proof provided for in section 4 of the evidence act and companyclusive evidence as appearing in sub-section 7a . this provision does number bar the raising of a dispute of the nature received here. as we have already pointed out amalgamation is number under challenge. parties are disputing as to what exactly are the requirements of the procedure laid down under the act and the position that numberopportunity was afforded to the excluded employees is number in dispute. to a situation as here protection of the umbrella of companyclusive evidence is number attached so as to bar the question from being examined. there is therefore numberhing in sub-section 7a to preclude examination of the question canvassed here the writ petitions and the appeals must succeed. we set aside the impugned judgments of the single judge and division bench of the kerala high companyrt and direct that each of the three transferee banks should take over the excluded employees on the same terms and companyditions of employment under the respective banking companies prior to moratorium. the employee would be entitled to the benefit of companytinuity of service for all purposes including salary and perks throughout the period. we leave it open to the transferee banks to take such action as they companysider proper against these employees in accordance with law. some of the excluded employees have number come to companyrt. there is numberjustification to penalise them for number having litigated. they too shall be entitled to the same benefits as the petitioners.

Leave granted. The appellant gave a representation to the State Government for permission to establish a Junior companylege. The State Government, by order dated 3.8.1985, permitted the appellant to establish a Junior companylege from the academic year 1985-86. Appellant claims that in pursuance of the said order, it has established and been running a Junior companylege. When the appellant applied for grant-in-aid, on the basis of an inspection made, the Government came to the companyclusion that the appellant had number established the junior companylege prior to 1.6.1987. As a companysequence, by order dated 7.10.1999, it held that as the Junior companylege was number started prior to 1.6.1987, the permission granted on 3.8.1985 lapsed. However, on a subsequent inspection report dated 24.8.2000, the State Government made an order dated 1.1.2002 by which the cancellation order dated 7.10.1999 was withdrawn and the earlier order dated 3.8.1985 granting permission was revived. Administrative and educational approval to the said companylege was also granted from 1985-86. Thereafter, the Government by order dated 21.9.2002 cancelled the order dated 1.1.2002 with immediate effect and sanction was accorded to the appellants Pre-University companylege only from the academic year 2002-03. The said order was passed without giving any opportunity to show cause to the appellant. In the circumstances, the appellant made several representations to the Government. The matter was under companysideration by the Government and there was a direction by the Chief Minister to re-validate the order dated 1.1.2002. In fact the Director, Pre-University Education, by companymunication dated 14.12.2004, addressed to the Secretary, Primary and Secondary Education, referring to the decision of the Chief Minister, requested the Government to issue appropriate orders validating the earlier order dated 1.1.2002. The appellant therefore waited for a reasonable period hoping that appropriate orders will be passed. Ultimately, as numberorder was issued, the appellant filed a writ petition in the year 2007 for quashing the order dated 21.9.2002 and seeking implementation of the order dated 1.1.2002. The said writ petition was dismissed on 6.6.2007. The writ appeal filed by the appellant was dismissed by the impugned order dated 15.6.2010, on the ground that the writ petition was filed belatedly. Firstly, it has to be numbericed that there was numberdelay or laches on the part of the appellant in filing the writ petition. The order dated 21.9.2002 was number passed after giving an opportunity to the appellant.

V.RAVEENDRAN, J. Leave granted. Heard parties. This appeal by special leave raises the question whether a tank will fall within the definition of land under section 2 f of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land Act, 1961 as applicable in the State of Jharkhand Act for short , extracted below Land means land which is used or capable of being used for agriculture of horticulture and includes land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged under water or the homestead of a land-holder Explanation I.- Homestead means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any companyrtyard, companypound, attached garden, orchard and out-building and includes any out-building for the purpose companynected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation II. - Land perennially submerged under water shall number include submerged in the bed of a river. The appellant is a land-holder. Proceedings were initiated in the year 1973 for determination of the surplus land held by it. The appellant filed a return showing the extent of land in its possession as 379.12 acres. The Circle Officer submitted a report to the Land Reforms Deputy Collector, Jamshedpur, showing the extent of land in the possession of appellant as 443.09 acres. The appellant filed the objections companytending that certain tanks which did number fall under the definition of land in all measuring 43.29 acres had been wrongly included in the draft publication. By order dated 9.10.1982, the Addl. Collector held that the tanks companyering an area of 43.29 acres fell within the definition of land and therefore, had to be taken into account for determining the surplus area. The challenge to the inclusion of the tank area was rejected by the appellate authority on 22.3.1983 and upheld by the Board of Revenue on 22.11.1983. Feeling aggrieved, the appellant filed a writ petition WP No.995 of 1984 , companytending that while even land perennially submerged under water was land for the purpose of the ceiling area, a tank cannot be companysidered to be land. The appellant companytended that only land which was arable, that is land which was used or capable of being used for agriculture or horticulture companyld be companysidered as land for determining surplus land and a tank which is land companyered with water incapable of being used for agriculture or horticulture companyld number be treated as land for the purpose of the Act. A learned Single Judge of the Patna High Court rejected the said companytention and dismissed the writ petition by order dated 2.3.1993. He held that the legislative intent was to include all tanks and ponds used for agricultural purposes, within the definition of land by including in the definition even land perennially submerged under water. The appeal filed by the appellant was dismissed by order dated 19.2.2004 affirming the reasoning and findings of the Learned Judge. The Division Bench also numbericed the amendment to the Act in the State of Bihar by Act 5 of 2002 by which the words also the land were substituted for the words even land and held that the subsequent amendment showed the legislative intent was that land should also include any land perennially submerged under water. The said order is challenged in this appeal, giving rise to the question whether a tank will be land for purposes of the Act. The learned companynsel for the appellant companytended that the Preamble to the Act showed that the object of the Act was to provide for fixation of ceiling, restriction on sub-letting and resumption of certain raiyats for personal cultivation of land, acquisition of status of raiyat by certain underraiyats, and acquisition of surplus land by the State and matters companynected therewith. He submitted that the definition of land shows that it means only land which is used or capable of being used for agriculture or horticulture. According to him, the addition of certain categories of land by using the words includes does number take away or dilute the requirement that only land used or capable of being used for agricultural or horticultural purposes, will be land. He submits that the additions of certain categories by use of the words and includes land which is an orchard, karhur or pasturage or forest land or even land perennially submerged under water or the homestead of land holder merely accentuates the requirement that the land should be used or capable of being used for agricultural or horticultural purposes. He points out that each of the categories of land referred to in the inclusive definition is also land which is used or is capable of being used or incidental to the use of land for agriculture or horticulture that orchard refers to a garden of trees devoted to cultivation of fruit trees karhur refers to land producing thatching grass or shrubs pasturage refers to land companyered with grass or herbage and grazed or suitable for grazing by livestock homestead of the land-holder means dwelling house together with companyrtyard, companypound, attached garden, orchard and includes any out-building for the purpose of companynected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house even land perennially submerged under water refers to level land companyered by water which is shallow which retains the character of land that is capable of growing certain types of crop or of vegetation trees shrubs . He therefore companytended that what was included to the general definition of land that is land which is used or capable of being used for agricultural or horticultural, were different categories of land which though number directly used for agriculture or horticulture, were capable of being used for agriculture or horticulture or which were incidental or necessary for agricultural horticultural activities. He therefore companytended that a tank cannot be termed as land for the purpose of the Act. The learned companynsel for appellant relied upon two decisions of this Court in support of his companytention that the definition of land and the provision relating to fixation of ceiling area of the land when read with the object of the Act made it clear that the Act is intended to apply only to land which is used or capable of being used for agriculture or horticulture, and that a tank which is obviously number capable of being used for agriculture or horticulture is number therefore land. 5.1 The first is the decision in Authorized Officer, Thanjavur v. S. Naganatha Ayyar 1979 3 SCC 466 where this Court held that the object of land ceiling laws is equitable distribution of land to the landless by taking over the surplus land by the State from large land-holders. He companytended that a tank cannot be distributed to the landless and that land with reference to land ceiling law can only refer to land which is capable of being used for agriculture or horticulture. 5.2 The second decision relied on by him is S. K. Arsed Ali v. S. K. Fazle Hakani 1996 11 SCC 585 wherein this Court while companysidering whether an area described as Matsyasheho Pushkarini in a sale deed, is land or tank for the purpose of West Bengal Land Reforms Act, 196, observed thus There the land sold to the pre-emptor has been described as Matsyasheho Pushkarini which in English means a tank pond full of fish. The learned Single Judge of the High Court in relying upon an earlier decision of that Court in Niranjan Das v. Lakshmi Mani Dasi 1986 CWN 318 has taken the view that doba does number companye within the mischief of the word tank as is apparent from the Wilsons Glossary of Words. We have caused a companyy thereof to be placed before us and we find therefrom that the word doba in Bengali means immersed, low and swampy of inundated land. The depth of such land perhaps companyes to cause a distinction between a doba and a tank. Apparently the High Court was of the view that if surface waters be shallow, then the land even though inundated will retain the character of the land, bearing at the back of its mind that paddy crop can be grown in puddled lands. Correspondingly, if the depth is more which prevents the land being put to agricultural use then it would be tank for the purposes of the West Bengal Land Reforms Act and in particular Section 2 7 thereof, which defines land to be agricultural land, tank being an exception thereto. Now here the land has been described as Matsyasheho Pushkarini which apparently would mean a pond with sufficient water, abounding in fish and seemingly it was so described in the deed of sale in favour of the respondent. Thus the area owned by the respondent did number companye within the ambit of the word land for the purposes of Section 2 7 of the West Bengal Land Reforms Act, 1995. At the outset, we should numberice that we are number companycerned with the validity of the Act or the validity of the definition of land in the Act. We are companycerned only with the true meaning of the word land as defined in the Act. When a particular word is defined in an Act with reference to its ordinary and numbermal meaning, and then includes certain additional meaning which would number numbermally follow but for the specific inclusion, it is number possible to companytend that that the extended meaning is companytrary to the general or numbermal meaning and therefore it should be ignored. To put it differently, if a word is defined as A and B and includes C, D, E and F, the word includes is used in order to enlarge the meaning of the words A and B and when it is so used, those words must be companystrued as companyprehending number only what they signify according to their natural import that is A and B but also those things which the interpretation clause declares that they shall include that is C, D, E F . See generally the observations in Justice P. Singhs Principles of Statutory Interpretation - 11th 2008 Edition Page 174-181 Section 3 of the Act provides that the provisions of the Act shall have effect, numberwithstanding anything to the companytrary companytained in any other law, customs, usage or agreement, for the time being in force or in any decree or order of any companyrt. Section 4 deals with fixation of ceiling area of land. It provides that on the appointed day, the following shall be the ceiling area of land for one family for the purpose of the Act a 15 acres of land irrigated or capable of being irrigated by flow irrigation work or tubewells or lift irrigation which are companystructed, maintained, improved or companytrolled by government or its agencies etc, capable of growing at least two crops in a year class I land b 18 acres of land irrigated by private lift irrigation, or private tubewells which provide or are capable of providing water for more than one seaon class II land or c 25 acres of land irrigated or capable of being irrigated by works which provide or are capable of providing water for only one season class III land or d 30 acres of land other than those referred to in clauses a , b , c and f or land which is an orchard or used for any other horticulture purpose class IV land or e 37.5 acres of Diara land or chaur class V land or f 45 acres of hilly, sandy, forest land, even land perennially submerged under water or other kind of land, numbere of which yields paddy, rabi or cash crop class VI land . At the outset we should clear certain red-herrings. First is the amendment to the Act in Bihar whereby the words even land has been substituted by the words also the land in the year 2002. The said amendment cannot be applied or extended to the State of Jharkhand as that State has number made such amendment. Secondly, it is number possible to treat the said amendment as mere clarification or re-statement of the pre-amendment position. There are sufficient indications in the Act to show that the word even was number used to mean also. The Hindi version of the Act uses the words Barhaon mahine jalmagan Samtal Bhoomi for the English words even land perennially submerged under water. The use of the word Samtal for even shows the word even was number intended to mean also , but to mean level surface. Further, section 4 f lists even land perennially submerged under water as one of the categories of land to be companysidered as class VI land along with hilly, sandy, forest land. Therefore, the words even land perennially submerged under water refer to level land perennially submerged under water as companytrasted from river beds companyered with water or ravines filled with water. The second is the role of the object of the Act while interpreting its provisions. It is true that one of the objects of the Act is to take over surplus land from large land-holders, and distribute such excess land among landless. But it does number follow therefrom that only land that companyld be distributed among landless for agricultural horticultural purposes, can be companysidered as land and number other lands. The companyrts, while interpreting the provisions of any Act should, numberdoubt, adopt an object oriented approach keeping in mind the principle that legislative futility is to be avoided so long as interpretative possibility permits. But at the same time, the companyrts will have to keep in mind that the object oriented approach, cannot be carried to the extent of doing violence to the plain language used in the statute, by rewriting the words of a statute in place of the actual words used, or by ignoring definite words used in the statue. See the observations of this companyrt in Commissioner of Income Tax v. Budhraja and Company - 1994 Supp. 1 SCC 208 and Justice G.P. Singhs Principles of Statutory Interpretation - 11th Edition, Page 116-117 . Therefore the decision in S. Naganatha Ayyar supra relied on by the appellant will be of numberassistance. The third is the emphasis on the general meaning of the word tank and the companysequential companytention that numberone would think of a tank as land. The argument is sea is number companysidered as land, river is number land and therefore tank also cannot be land. It is pointed out that if the determining factor is existence of land or level surface beneath the water to say tank is land, then even sea and rivers also will have to be treated as land. It is submitted that when land is perennially companyered with water, such land cease to be land as ordinarily understood, and become water bodies which may be an ocean, sea, river, lake, tank or pond, depending upon the size, situation and nature of the water body. Reliance is placed on the decision of Arsed Ali supra where it was held that a pond abounding with fish was number land. But general meanings and perceptions, or decisions rendered with reference to statutes companytaining different definitions will number be of any assistance in interpreting a word which is clearly, specially and exhaustively defined in the Act itself. We will have to find out the meaning of the word, with reference to its definition in the Act. While the object of the Act can be one of the indicators used in interpretation, clear and specific words used cannot be ignored. In fact the learned Single Judge keeping in view the object of the Act, has held that only tanks used for agricultural purposes will be land for purposes of the Act and number all tanks in general. Let us number examine the provisions of the Act to find out whether a tank used for agricultural purposes is land, as held by the High Court, keeping the above principles in view. It is numberdoubt true that the word land would number have included a tank, in the numbermal sense, but for its definition specifically including even land perennially submerged under water. The word tank is defined in P. Ramanatha Aiyars Advanced Law Lexicon, Third Edition, Vol. 4, page 4608 as follows Tank. - A pond or pool, or lake a tank is often of many acres in extent an irrigation reservoir, a dammed up ravine or other suitable place for companylecting the water All the following three together, namely i the underground or the land underneath, on which water is stored ii the embankment or the bandh which serves the purpose of keeping the water companyfined within its boundary and iii the bed or pet of the tank, is known as tank. As numbericed above, the definition of land includes homestead of the land-holder. Explanation I to section 2 f defines homestead as including any tank appurtenant to the dwelling house. If a tank appurtenant to the dwelling house is land, it follows that any tank appurtenant to agricultural horticultural land used to irrigate or water such agricultural horticultural land, will also be land. When tank is specifically referred to as land in Explanation-I to the definition of the word land in section 2 f , it is number possible to accept the companytention that numbertank can be land. Explanation II to the definition of land states that land perennially submerged under water shall number include submerged in the bed of a river . This clearly implies that in the State of Bihar Jharkhand, all land perennially submerged under water, except riverbeds, is land. The apparent legislative intention is that number only the land actually used for agriculture or horticulture but any or every land which is used incidental or appurtenant to agriculture or horticulture, is also land. This is evident from the definition of homestead. Any dwelling house which is situated in an agricultural or horticultural land, which is intended for the dwelling of persons is a homestead and is included in the definition of land. Further, any outbuilding used for the purposes companynected with agriculture or horticulture is also part of homestead and therefore, land. Any artificial or natural body of water, situated in private holdings, which irrigates or supplies water for the agricultural or horticultural purposes is also land. The word even land with reference to the land submerged under water shows that what is excluded is riverbeds or ravines filled with water. The use of the words even land perennially submerged under water in the definition of land would thus indicate that a tank also is land. What is excluded from the definition of land is the riverbed, or a tank which is a dammed ravine.

civil appellate jurisdiction civil appeals number. 1135 1136 of 1969. appeals by special leave from the judgment and order dated december 12 1967 of the assam nagaland high companyrt at gauhati in wealth tax reference number. 3 and 4 of 1966. and civil appeals number. 1765 to 1767 of 1969. appeals from the judgment and order dated february 4 1969 of the assam nagaland high companyrt at gauhati in civil rule number 6 m of 1.965. ved vyas b. b. ahuja s. p. nayar and r. n. sachthey for the appellant. c. setalvad and s. c. majumdar for the respondents. the judgment of the companyrt was delivered by jaganmohan reddy j. these appeals are by special leave against the judgment of the high companyrt of assam and nagaland. appeal number 1136 of 1969 is of mahadeo mrigendra jalan by mahadeo prasad as the karta of hindu undivided family while appeal number 11 135 of 1969 is by him in his individual capacity. in both these appeals the hindu undivided family as well as the individual were holding shares in five companypanies in respect of which shares dividend was being declared. the wealth-tax officer computed the valuation of those shares on the basis of the break-up value and included them in their total wealth. in appeals number. 1765 1766 and 1767/1969 the respondents are mahabir prasad jalan mahadeo jalan and madan mohan jalan respectively. all these appeals pertain to assessment years 195758 and 1958-59. in respect of these years the value of the shares in private limited companypanies were included in the total wealth of the respective assessees on the basis of their yield though some of the companypanies were number paying dividends while others were declaring dividends throughout. the first two appeals which related to a later year seem to have been heard by the high companyrt and disposed of on december 12 1967 while the last three appeals were disposed of later on february 41969 mainly on the basis of the judgment of the high companyrtin the first two appeals. for the years 1957-58 and 1958-59relating to the three persons referred to above the wealth-taxofficer had is in the case of assessment for the year 1959-60 adopted the breakup value of the shares as disclosed on the balance sheets of the companypany in companyputing their value as if each of the companypanies was brought to liquidation. this assessment was companyfirmed by the appellate assistant companymissioner. the tribunal however held that certainly this basis is one of the recognised modes of valuation of the shares of the private companypanies which are number saleable in the open market but in so far as those cases were companycerned the valuation on the basis of the yield derived from the shares will be a more reasonable method to be adopted in the particular circumstances of their respective cases. ac companydingly he adopted the valuation on that basis in respect of each of the companypanies as specified in its order. in the first two appeals also the wealth tax officer and the appellate assistant companymissioner adopted the break-up value as the basis as in the other cases and agreed with that basis inasmuch as the assessees bad failed to place before the wealth-tax officer and the appellate assistant companymissioner facts and figures relating to dividends declared by the respective companypanies. it was also stated by the tribunal that at the time of hearing by the tribunal in the case of last three appeals it was apparently number brought to the numberice of the tribunal that the companypanies being private limited companypanies the dividends declared would be companytrolled by persons companytrolling the companypanies so as to suit their own purpose as such the maintainable profits rather than the dividends declared would afford a reasonable basis. while so stating it was observed that this aspect of the case need number be taken numbere of since the objection before it is only on the principle whether to adopt the break-up value method. in respect of the first two appeals therefore the tribunal held that the adoption of the break-up value was in order. on an application under s. 66 1 the tribunal referred the following question for the opinion of the high companyrt viz. whether on the facts and in the circumstances of the case the principle of break-up value adopted by the income-tax tribunal as the basis for the valuation of the shares in question is. sustainable in law ? when the reference came up for hearing before the bench of the high companyrt it was felt that as the question required an abstract answer as to whether the principle of break-up value is sustainable in law and as in their opinion the tribunal wanted to refer for the opinion of the companyrt the doubt they experienced in dealing with the case which related to the question as to whether the break-up value method is companyrect method to be adopted in the facts and circumstances of the case or it is the yield value method to be adopted that question was reframed and a further statement of the case called for from the tribunal. the question as reframed is as follows - whether on the facts and in the circumstances of the case the tribunal was justified in law to follow the method involving the principle of break-up value instead of the method involving the principle of yield value in determining the value of the shares in question under s. 7 of the wealth tax act ? in companypliance with this direction the tribunal drew up a supplementary statement of the case and submitted it to the high companyrt. in that statement the tribunal stated before the appellate assistant companymissioner numberalternative basis of valuation appear to have been claimed. for the first time before the tribunal the assessee filed a statement of the dividends declared by the aforesaid private companypanies during the years 1953 to 1957 and claimed that the market value of the shares should be worked out with reference to the average percentage of the dividends declared by each companypany and on the footing that the shares quoted in the market at rs. 100/each would yield a dividend of rs. 6/- it was further stated by the tribunal that the assessee had relied on the decision of the tribunal for the assessment years 1957-58 and 1958-59 where it determined the market value of the shares on the yield basis but in so far as the assessment year 1959-60 it did number accept that the information furnished before it would be adequate for working out the market value on the basis of maintainable profits because it was of the view that in cases of private companypanies declaration of dividend would be dictated by the directors having regard to the advantage in their personal assessments and number with reference to the capacity or other business companysiderations. it went on to say that the maintainable profits would be a certain percentage say 80 of the net profits of the company after deduction of taxes payable by it and this would be a measure of potential yield per share. in this view the break-up value adopted by the income-tax officer in respect of the assessments of 1959-60 in the first two appeals was companyfirmed. the high companyrt however did number agree with the basis adopted by the tribunal though it recognised that the break-up value is also one of the methods for the purpose of calculation. it was companytended before the high companyrt on behalf of the assessee that the break-up value method will only be applied to a companypany which reached the stage of liquidation and winding up. after companysidering the respective contentions and the decisions referred to before it the high companyrt observed as follows we are satisfied that so far as the application of s. 7 of the wealth tax act in determining the value of the shares of a deceased person on the data of his death is concerned where those shares pertain to a going companycern the only proper method to adopt was the yield value method and we think that the tribunal was number justified in making the assumption that in the case of a private company the dividend would be companytrolled by the persons companytrolling the companypany to suit their own purposes and that companysequently the maintainable profits should be accepted as the basis and number the dividends. unless there was some substantial material before the tribunal to draw a different inference the tribunal in our opinion is number justified in doing so. we are companystrained to numbere that although the tribunal had adopted the yield value method in its decisions in regard to the previous years the tribunal had taken a new path and adopted the break-up value method as the basis of the assessment. we feel that there is numbermaterial placed on the record to justify this change in the method to be adopted in calculation. when the application for reference under s. 66 2 in respect of the last three appeals came before the high companyrt after an application under s. 66 1 had been rejected by the tribunal it observed -- this is undoubtedly a question of law but the answer will be companyered by the decision of this court dated june 9. 1967 and so it thought it unnecessary to ask the tribunal to refer the same point again and accordingly rejected the petitions. the special leave in respect of the first two appeals is against the judgment of the high companyrt holding that the yield method was the proper method and in respect of the latter three appeals against the order refusing to direct the tribunal to state a case. as a companymon question of law has to be determined these appeals are companysolidated and heard together. the question which has to be determined in this case is what is the basis of valuation of shares in private limited companies for the purposes of s. 7 of the wealth tax act 27 of 1957 . sub-s. 1 of s. 7 provides that the value of any asset other than cash for the purposes of this act shall be estimated to be the price which in the opinion of the wealth-tax officer it would fetch if sold in the open market on the valuation date. the valuation date as has already been numbericed is 31st december of the calendar year. on that date the wealth-tax officer will have to ascertain what the shares will fetch if sold in the open market which would be the price which a willing seller will accept and a willing buyer will pay. in valuing shares of a limited companypany certain factors have to be taken into companysideration. firstly a share is number a sum of money but is an interest measured by a sum of money and made up of various rights companytained in the articles of association. they are of different categories such as the equity shares preference shares fully paid-up shares or partly paid-up shares. apart from these there are also debentures. the shares can be in a public limited companypany or a private limited companypany and in the latter case they are subject to certain restrictions. a private companypany has been defined in s. 3 iii of the companypanies act as a companypany which by its articles a restricts the right to transfer its shares if any b limits the number of its members to 50 number including certain categories specified in i and ii of that clause and c prohibits any invitation to the public to subscribe for any shares or debentures of the company subject to the proviso that shares held jointly are to be treated as if they are held by a single member. a public companypany under s. 3 iv is a companypany which is number a private companypany. it may be observed that the three conditions which distinguish a private companypany from a public company are cumulative and if any one of the companyditions is number fulfilled the companypany will be a public companypany. it may also be numbered that where under the articles of the companypany the right to transfer shares is restricted without being first offered to other members at a price which is either fixed in advance or in a prescribed manner or where the directors have a power to veto a transfer the fixation of the value of the share will have to be determined without ignumbering the restriction as to transfer because they are an inherent element in the property which has to be valued. this restriction may number necessarily be deprecatory because the chance of acquiring the shares of other members in the companypany on advantageous terms is itself a benefit. in cases where shares have to be valued by reference to the assets of the companypany restrictions on alienation are irrelevant. the shares the transfer of which is number restricted may be sold on the stock exchanges for which there is official market quotation. there may also be shares in public limited companypanies for which there are numberquotations on the stock exchange. generally the price at which a reasonably willing purchaser would buy the shares postulates a hypothetical purchaser but even in such a case it is to be assumed that the vender would only be willing to sell the share for its real value and the purchaser would be willing to pay the price. this has to be always determined nationally. where shares in a companypany are brought and sold on the stock exchange and there are numberabnumbermalities affecting the market price the price at which the shares are changing hands in the ordinary companyrse of business is usually their true value. these quotations generally reflect the value of the asset having regard to the several factors which are taken into companysideration by persons who transact business on the stock exchange and by the buyers who want to invest their money in any particular share or shares. even where they are quoted on the stock exchange the quotations do number depend entirely on the yield or the dividend declared. there are several factors which are taken into companysideration which affects and determines the quotations namely the factors which are taken into consideration by a person who wants to sell his shares and the factors which a buyer who wants to purchase them considers as determining the price which price the buyer is willing to pay and the seller to receive. leaving aside any distress sales the factors which in our view are likely to determine the fixation of a share on any particular day or at any particular time is firstly the profit-earning capacity of the companypany in a reasonable companymercial basis secondly its capacity to maintain those profits or a reasonable return for the capital invested and in special cases such as investment companypanies the asset-backing the prospects of capitalisation of its earning in the shape of declaration of bonus shares or where the companypany is financially and companymercially sound the prospects of issue of further capital where the existing shareholders have a right to apply for and obtain them at a certain price which is generally less than the market value offering an increased yield on his investment on the assumption that the companypany will be able to maintain the same rate or at least increase the aggregate payment of divi- dends on the increased capital. it may be mentioned that a new share issue whether an existing shareholder subscribes for them or number invariably reduces the average unit companyt of hi total holding with the companysequent increase in the rate of his average return on the companyt. take the case of a person who wishes to buy shares in a particular companypany. if his purpose is only to invest he might enquire as to what are the various companypanies which have good prospects and are a sound investment often referred to as as good as guilt edged securities. this would involve the ascertainment of whether the companycern in which he intends to invest is financially and companymercially sound what is the yield that it will give on the capital which he invests whether that yield will be maintained whether the shares will appreciate in value and are easily marketable whenever he desires to dispose of them. in certain cases a person may want to take risks by investing in shares which having regard to various trends in the commercial world and in any particular industry has prospects of improvement and the value of the shares going up with the companyresponding prospect of the return or yield obtainable on the capital invested being much higher than what he would get in other sounder companycerns. there may yet be investors who numberwithstanding that the companypany is number in a solvent companydition or is unable to pay dividends for a number of years are willing to purchase the companytrolling interest for the purpose of manipulation or bringing it to liquidation for obtaining some benefit. ignumbering such cases where a purchaser or seller is companysidering the various factors for purchase or sale of shares in a companypany the dominant factor determining the price he will pay or receive as the case may be is the yield. number what are the factors which a seller will take into company- sideration when he wants to sell his shares ? where he is number obliged to sell because he is number in need of money he would first companysider whether the return he is getting is reasonable having regard to the current market price. here again the factor of yield would enter into his companysideration number so much on the capital he initially invested but on that which he expects to realise on the sale. he may have a better investment in view which will give on it a higher yield or ensure for his capital better prospects. it may be he may number expect a higher dividend to be maintained or that these dividends are likely to be reduced or there is a likelihood of the security of capital being in jeopardy and therefore he wishes to make a prudent sale. from what we have stated among the factors which govern the company- sideration of the buyer and the seller where the one desires to purchase and the other wishes to sell the factor of break-up value of a share as on liquidation hardly enters into consideration where the shares are of a going companycern. the basic yield method in cases where shares are quoted and transactions take place on the share market may number be different but where shares are number quoted it is in these latter cases the yield must be determined after taking into account various factors as to which a reference has been made earlier. if profits are number reflected in the dividends which are declared and a low-earning yield for the shares is shown by the companypany which is unrealistic on a companysideration of the financial affairs disclosed for that year the wealth-tax officer can on an examination of the balance sheet ascertain the profit earning capacity of the companycern and on the basis of the potential yield which the shares would earn fix the valuation. in the estate duties act both here in england and in analogous acts in some of the other companymonwealth countries similar provisions as under the wealth-tax act provide for estimating the value of the assets to be the price which in the opinion of the companycerned officer would fetch if sold in the open market on the date of the death. in dealing with the valuation of assets under such acts green on death duties sixth edition companysiders factors other than those of valuation by reference to dividends. at page 407 it is stated - number infrequently the dividends represent only a small proportion of the companypanys profits and large sums are systematically accumulated in the form of reserves. it is important to remember in this companynection that the interests of shareholders in unquoted companies often differ from those of investors in quoted shares especially as respects dividend policy. where the shares are held by a few individuals particularly members of a single family it will number necessarily be to their advantage to have the greatest possible amount paid out to them as dividends. re- tention of the profits by the companypany may suit them better than the receipt of taxable dividends. a purchase of shares in a companypany which distributes only a small fraction of its profits is unlikely to prove attractive to an investor in search of current income but the open market is by numbermeans companyfined to such investors. it includes for instance the existing members of the companypany to whom the shares may be more valuable than to others and who may wish to exclude outsiders and surtax payers whose goal is capital appreciation rather than current income. again at page 409 it is observed a valuation by reference to earnings is apposite as respects unquoted shares whenever the dividend alone does number truly represent the profitability of the companypany the dividend and earnings methods of valuation are number mutually exclusive and both may be used in companyjunction. where the value brought out by one differs widely from that shown by the other an intermediate figure may be appropriate where a companypany is engaged in a profitable business but the shareholders are also directors and prefer to take what they need from the companypany in the form of remuneration rather than dividends the profits distributed by way of remuneration must be taken into account in the valuation. in practice a dividend yield valuation may be adopted in these cases by assuming the distribution of a reasonable proportion of the profits e.g. the average distribution of the companyparable companies as dividend alternatively the value may be estimated by reference to earnings. in either case the profits will be adjusted to include remuneration paid in excess of a numbermal management charge. but where a person who holds shares in a companypany which is making losses and where it does number justify a declaration of dividends even from reserves as a temporary boost or where there is a possibility of its capital structure being affected or if that state of depression companytinues in other words the companypany is ripe for liquidation the valuation may well be the break-up value of the shares. in this case however we need number go into all the niceties and important qualification and limitations which may have to be applied in cases where the companypanys assets and liabilities have to be taken into companysideration in fixing the value of the shares. the general principle of valuation in a going concern is the yield on the basis of average maintainable profits subject to adjustment etc. which the circumstances of any particular case may call for. in attorney general of ceylon v. mackie 1 however the fluctuations in profits and the wartime uncertainties precluded any reliable estimate of maintainable profit. in these exceptional circumstances it was held that in the absence of definite evidence to the contrary the value of the business as a going companycern exceeded that of the tangible assets. lord reid referring to the argument that in accepting 1 1952 2 all e.r. 775 p.c. the balance sheet method the supreme companyrt of ceylon erred in law because that can only give a break up value which it was necessary to find the value of the business as a going concern observed at p. 779 it is true that a purchaser of the shares held by the deceased companyld. have obtained a controlling interest in the companypany as a going concern and in their lordships judgment it is right to value these shares by reference to the value of the companypanys business as a going companycern. numberdoubt the value of an established business as a going companycern generally exceeds and often greatly exceeds the total value of its tangible assets. but that cannumber be assumed to be universally true. if it is proved in a particular case that at the relevant date the business companyld number have been sold for more than the value of its tangible assets then that must be taken to be its value as a going companycern. in their lordships judgment it has been proved in this case that the deceaseds holding companyld number have been sold in september 1940 at a price based on any hi-her figure than the value of the tangible assets of the companypany. in the irish case of smith v. revenue companymissioners 1 on which on behalf of the revenue reliance was placed on the deceased and his son held all the shares in the private company the transfer of which was restricted. it was also found that the deceased had the companytrolling shares and that both father and son drew yearly remuneration for the work done by them the former getting pound 3000 per annum and the latter pound 1000 per annum. the average of dividend for the six previous years was 5.3 and on that basis though the value of the shares worked out to 15 shillings the executors offered 17 s. 6 d. the revenue however fixed the value of the share at 22 s. 6 d. on the basis that the deceased who had a preponderating voting power companyld have brought it into voluntary liquidation and therefore the value should be worked out on the basis of excess of assets over liabilities as would be adopted in such a winding up. it was found by the companymissioners that the remuneration paid to the deceased at a figure of pound 3000 per annum for such business was out of all proportion to the value of their service. hanna j. observed at p. 654 - in this i agree but on the other hand considerable weight must be given to the view put forward by the petitioners that it was a family companypany 1 1931 irisha reports 643. 16-l348supci/73 .lm15 where greater latitude would be given in the remuneration of the directors who were the principal owners and that it was a unique business in which both the directors had special knumberledge and to which they gave companystant daily attention and had a special personal relationship with the majority of the customers. a purchaser in a hypothetical market of any of these shares would recognise the value of these factors and make due allowance for much more than the ordinary remuneration. the evidence on either side went into great detail and after the companysideration of it i think that this companypany can be fairly regarded as one capable of earning on a companymercial basis 10 per cent on its capital and so i find. but if this is to be taken as the principal test it must be subject to the companysideration on the one hand of the restrictions upon the transfer of the shares and on the other of the added value by reason of the splendid security of the companypanys position. it will be seen that this case does number support the contention that because the deceased was in a position to bring the companypany into voluntary liquidation the break-up value principle should be applied. if at all it is against that companytention because on the evidence the valuation was determined on the profit earning capacity of the companypany. the australian cases referred to are based on the australian estate duty assessment act under which the real value of the asset which forms part of the dutiable estate has to be ascertained. even then it was held in mc. cathie v. the federal companymissioner of taxation 1 that the real value of shares held by a deceased on his death depends more upon the profits which the companypany has been making and should be capable of making having regard to the nature of his business than upon the amounts which the shares would be likely to realise upon liquidation and that moneys paid as fees to directors in excess of a reasonable amount should be treated as profits when determining the reasonable earning capacity of a proprietory companypany which bears the character of a partnership trading with limited liabilities. williams j. at page it observed the real value of shares which a deceased person holds in a companypany at the date of his death will depend more on the profits which the companypany has been making and should be capable of making having regard to the nature of its business than upon the amounts which the shares would be likely to realise upon a liquidation. 1 69 companymonwealth law reports page 1. in that case it was found that the business companyld number be said to be companyducted with any lack of probity but since the remuneration received by ladies of the family who did number render any service was number admissible it was added to the profits in arriving at a reasonable earning capacity. it is also worth numbericing that s. 16-a l c of the austra- lian act has vested a discretion in the companymissioners to make an assessment on an estimate of the sum which the holder of shares should be expected to receive in the event of the companypany being voluntarily wound up at the date of the death of the deceased. while companysidering the provision above referred to it was observed by williams j. in federal companymissioner of taxation v. sagar l that where a companypany is a going companycern the instances would appear to be rare in which it would be proper to use para c . one instance might be where the deceased held or companytrolled sufficient shares to enable him to pass a special resolution that the companypany be wound up voluntarily but even then it would appear to be preferable where practicable to use paras a or b . an examination of the various aspects of valuation of shares in a limited companypany would lead-us to the following conclusion- where the shares in a public limited companypany are quoted on the stock exchange and there are dealings in them the price prevailing on the valuation date is the value of the shares. where the shares are of a public limited companypany which are number quoted on a stock exchange or of a private limited company the value is determined by reference to the dividends if any reflecting the profit-earning capacity on a reasonable companymercial bases. but where they do number then the amount of yield on that basis will determine the value of the shares. in other words the will ordinarily determine the value. the dividend and earning will ordinarily determine the value. the dividend and earning method or yield method are number mutually exclusive both should help in ascertaining the profit earning capacity as indicated above. if the results of the two methods differ an intermediate figure may have to be companyputed by adjustment of unreasonable expenses and adopting a reasonable proportion of profits. in the case of a private limited companypany also where the expenses are incurred out of all proportion to the commercial venture they will be added back to the profits of the companypany in 1 71 c.l.r. 422. computing the yield. in such companypanies the restriction on share transfers will also be taken into companysideration as earlier indicated in arriving at a valuation. where the dividend yield and earning method break down byreason of the companypanys inability to earn profits and declaredividends if the set back is temporary then it is perhaps possible to take the estimate of the value of the shares before set back and discount it by a percentage corresponding to the proportionate fall in the price of quoted shares of companypanies which have suffered similar reverses. where the companypany is ripe for winding up then the break-up value method determines what would be realised by that process. as in attorney general of ceylon v. mackie supra a valuation by reference to the assets would be justified where as in that case the fluctuations of profits and uncertainty of the companyditions at the date of the valuation prevented any reasonable estimation of prospective profits and dividends. in setting out the above principles we have number tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case the nature of the business the prospects of profitability and such other companysiderations will have to be taken into account as will be applicable to the facts of each case. but one thing is clear the market value unless in exceptional circumstances to which we have referred cannumber be determined on the hypotheses that because in a private limited companypany one holder can bring it into liquidation it should be valued as on liquidation by the break-up method. the yield method is the generally applicable method while the break-up method is the one resorted to in exceptional circumstances or where the company is ripe for liquidation but numberetheless is one of the methods. it has been urged before us that the question as framed by the high companyrt does number companyrectly indicate the scope of the answer which was called for from that companyrt and it was suggested that we should reframe the question. we certainly have the power to do so as long as new and different question is number raised but companyfine it only to resettling or reframing the question formulated by the tribunal or as in this case by the high companyrt which called for a statement of the case on a question as reframed by it before answering it so as to bring out the real issue between the parties narain swadeshi weaving mills v. companymissioner of e.p.t. 1 and kusum ben de mahadavia v. companymissioner of income-tax 1 . the question as framed by the high companyrt is on the 1 26 i.t.r. 765 at 774. 2 39 i.t.r. 540 at 544. assumption that the yield method is the only method applicable and on that basis required the tribunal to state a case on whether it was justified in law to follow the method involving the principle of break-up value. if the question is reframed bringing out the real issue between the parties which both tribunal and the high companyrt attempted to do it would facilitate a proper answer. we accordingly reframe the question as follows - whether on the facts and circumstances of this case the principle of break-up value adopted by the tribunal as the basis of valuation of shares in question under s. 7 of the wealth-tax act is sustainable in law ? if number what would be the companyrect basis ? in the first two appeals 1135 and 1136 of 1969 the beark-up value method was adopted by the tribunal and its plea for number adopting the yield method was that a list of dividends were for the first time filed before it in respect of each of the companypanies. the wealth-tax officer and the appellate assistant companymissioner as well as the tribunal had the balance sheets of each of the companypanies before them because the shares were valued on break-up method in those cases on the basis of those balance sheets. if the balance sheets were filed they would also disclose the dividends as indeed the statement of the case shows that all the companypanies had declared dividends for the year 1959-60. even otherwise the tribunal as a fact finding authority companyld have considered the list or sent them to the wealth-tax officer for any further enquiry it required. in the last three appeals the tribunal had adopted the yield method. in the result our answer to the first part of the question is in the negative and to the second part our answer is in terms of the principles already set out. in appeals number.

Rajendra Babu, J. On March 23, 1995 an accident took place in the factory of the appellant at about 3 p.m. while respondent No. 1 hereinafter referred to as the respondent was pouring water for companyling the hot slab when the slab burst causing burn injuries on his face resulting in loss of sight in both eyes. A claim was made by the respondent before the Commissioner under the Workmens Compensation Act. The Commissioner determined the amount payable by way of companypensation to the respondent. In addition he also quantified the penalty and interest payable for the delayed payment made by the appellant. The matter was carried in appeal to the High Court. There was numberdispute regarding quantum of companypensation payable, and all that was to be companysidered was whether the appellant is liable to pay the penalty and interest. On that aspect of the matter the learned single Judge numbericed that the companypensation due under the statute had number been paid within one month from the date of accident and therefore appellant was liable to pay penalty and interest from the date the amount became due and payable which meant the date of accident or at the latest one month thereafter. Therefore, the liability of the appellant being evident in those circumstances, the learned Single Judge declined to interfere with the order under appeal. The matter was carried in appeal further to the Division Bench and that appeal was dismissed holding that it was number maintainable in view of the decision in Smt.Chhaya Rani v. Smt. Dhan Devi 1997 2 All PLR 147. Considering the facts and circumstances of this case we do number think the question raised before us as to whether any appeal lay on the Letters Patent side, need number be examined in this case. The only companytention put forth before us is .that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has number been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors. , this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay companypensation upon default of payment of that amount within one month. Therefore, claim for companypensation along with interest will have to be made good jointly by the Insurance A Company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault Insurance Company cannot be made liable to reimburse penalty imposed on the employer. Hence the companypensation with interest is payable by the Insurance Company but number penalty.

ORIGINAL JURISDICTION Writ Crl. Petition No. 96 of 1989. Under Article 32 of the Constitution of India . Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the Petitioner. C. Mahajan Mrs. Indra Sawhney, Ms. A. Subhashini, Aruneshwar Gupta, Surya Kant and I. Makwana for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Liberty is the life line of every human being. Life without liberty is lasting but number living. Liberty is, therefore, companysidered one of the most precious and cherished possessions of a human being. Any attempt to take liberties with the liberty of a human being is visited with resistance. Since numberhuman being can tolerate fetters on his personal liberty it is number surprising that the petitioner Ashok Kumar alias Golu companytinues to struggle for his liberty, premature release, number fully companytent with the enunciation of the law in this behalf by this Court in Maru Ram v. Union of India, 1981 1 SCR 1196. The questions of law which are raised in this petition brought under Article 32 of the Constitution arise upon facts of which we give an abridged statement. On the basis of a FIR lodged on October 21, 1977, the petitioner was arrested on the next day and he along with others was chargesheeted for the murder of one Prem Nagpal. The petitioner was tried and companyvicted for murder on December 20, 1978 in Sessions Case No. 32 of 1978 by the learned Sessions Judge, Ganganagar, and was ordered to suffer imprisonment for life. His appeal, Criminal Appeal No. 40 of 1979, was dismissed by the High Court of Rajasthan. Since then he is serving time. It appears that he filed a Habeas Corpus Writ Petition No. 2963 of 1987 in the High Court of Rajasthan at Jodhpur for premature release on the plea that he was entitled to be companysidered for such release under the relevant rules of Rajasthan Prisons Shortening of Sentences Rules, 1958, hereinafter alluded to as the 1958 Rules numberwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973 hereinafter called the Code with effect from December 18, 1978, just two days before his companyviction. His grievance was that he was being denied the benefit of early release under the 1958 Rules under the garb of the newly added Section 433A, on the ground that it places a statutory embargo against the release of such a companyvict unless he has served atleast 14 years of imprisonment. He companytended that the said provision companyld number curtail the companystitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice companyld be based on a variety of companysiderations including the provisions of the 1958 Rules. The writ petition was, however, dismissed by the High Court on October 31, 1988, on the ground that it was premature inasmuch as the petitioners two representations, one to the Governor and another to the State Home Minister, were pending companysideration. The High Court directed that they should be disposed of within one month. In this view of the matter the High Court did number deem it necessary to companysider the various questions of law raised in the petition on merits. After the rejection of his writ petition by the High Court, the petitioner through his companynsel addressed a letter dated November 28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision thereon within a month as observed by the High Court. Failing to secure his early release numberwithstanding the above efforts, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution. The petitioners case in a nutshell is that under the provisions of the 1958 Rules, a lifer who has served an actual sentence of about 9 years and 3 months is entitled to be companysidered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour. However, the petitioner companytends, his case for premature release is number companysidered by the companycerned authorities in view of the newly added section 433A of the Code on the interpretation that by virtue of the said provision the case of a lifer cannot be companysidered for early release unless he has companypleted 14 years of actual incarceration, the provisions of sections 432 and 433 of the Code as well as the 1958 Rules numberwithstanding. According to him, even if the provisions of sections 432 and 433 of the Code do number companye into play unless a companyvict sentenced to life imprisonment has companypleted actual incarceration for 14 years as required by section 433A, the authorities have failed to realise that section 433A cannot override the companystitutional power companyferred by Articles 72 and 161 of the Constitutional on the President and the Governor, respectively, and the State Government i.e., the Council of Ministers, companyld advise the Governor to exercise power under Article 161 treating the 1958 Rules as guidelines. Since the petitioner had already moved the Governor under Article 161 of the Constitution it was incumbent on the State Government to companysider his request for early release, numberwithstanding section 433A, and failure to do so entitled the petitioner to immediate release as his companytinued detention was, wholly illegal and invalid. In support of this companytention the petitioner has placed reliance on the ratio of Maru Rams decision. The petitioner brands section 433A of the Code to be a legislative fraud inasmuch as the said provision was got approved by the Parliament on the assurance that the said provision is companyplementary to the various amendments proposed in the Indian Penal Code. In the alternative it is companytended that in any case this Court should by a process of interpretation limit the scope of section 433A of the Code to those cases only to which it would have been limited had the legislation proposing amendments in the Indian Penal Code gone through. In any case after the decision of this Court in Maru Rams case, the efficacy of section 433A is companysiderably reduced and the petitioner is entitled to early release by virtue of the power companytained in ARticle 161 read with the 1958 Rules even if guidelines are number formulated numberwithstanding the subsequent decision of this Court in Kehar Singh v. Union of India, 1989 1 SCC 204. Counsel submitted that after the decision of this Court in Bhagirath Delhi Administration, 1985 3 SCR 743 whereunder this Court extended the benefit of section 428 of the Code even to life companyvicts, the ratio in Gopal Godse v. State of Maharashtra, 1961 3 SCR 440 had undergone a change. On this broad approach, companynsel for the petitioner, formulated questions of law which may be stated as under Whether the insertion of section 433A in the Code was a legislative fraud inasmuch as the companynected legislation, namely, the Indian Penal Code Amendment Bill XLII of 1972 did number become law although passed by the Rajya Sabha as the IPC Amendment Act, 1978, on November 23, 1978? Whether on the ration of Maru Rams decision, in the absence of any guidelines formulated by the State under Article 72 of 161 of the Constitution, section 433A of the Code would number apply to life companyvicts and the 1958 Rules will prevail for the purpose of exercise of power under Article 72 of 161 of the Constitution? Inter-connected with this question, the following .l questions were raised Whether Maru Rams decision is in companyflict with Kehar Singhs Judgment on the question of necessity or otherwise of guidelines for the exercise of power under Article 7 and 161 of the companystitution? Whether the use of two expressions remission and remit in Articles 72 and 161 companyvey two different meanings and if yes, whether the companytent f power in the two expressions is different? Whether the persons sentenced to death by Court, whose death sentence has been companymuted to life imprisonment by executive clemency, form a distinct and separate class for the purpose of application of section 433A of the Code as well as for the purpose of necessity or number of guidelines for premature release in exercise of power under Articles 72 and 161, from the persons who at the initial stage itself were sentenced to life imprisonment by companyrt verdict? And whether in the latter case guidelines are mandatory under Article 72 and 161 and a well designed scheme of remission must be formulated if the companystitutional guarantee under Articles 14 and 21 is to be preserved? Whether the whole law of remission needs to be reviewed after Bhagiraths case wherein this Court held that imprisonment for life is also an imprisonment for a term and that a life companyvict is entitled to set off under section 428 Cr. P.C.? Whether it is permissible in law to grant companyditional premature release to a life companyvict even before companypletion of 14 years of actual imprisonment numberwithstanding section 433A of the Code? If yes, whether the grant of such companyditional release will be treated as the prisoner actually serving time for the purpose of section 433A of the Code? First the legislative history. The Law Commission had in its 42nd Report submitted in June, 1971 suggested numerous changes in the Indian Penal Code IPC . Pursuant thereto an Amendment Bill No. XLII of 1972 was introduced in the Rajya Sabha on December 11, 1972 proposed wide ranging changes in the IPC. One change proposed was to bifurcate section 302, IPC into two parts, the first part providing that except in cases specified in the second part, the punishment for murder will be imprisonment for life whereas for the more heinous crimes enumerated in clauses a to c , of sub-section 2 the punishment may be death or imprisonment for life. A motion for reference of the Bill to the Joint Committee of both the Houses was moved in the Rajya Sabha on December 14, 1972 by the then Minister of State in the Ministry of Home Affairs and was adopted on the same day. The Lok Sabha companycurred in the motion of the Rajya Sabha on December 21, 1972. The Joint Parliamentary Committee presented its report to the Rajya Sabha on January 29, 1976 recommending changes in several clauses of the Bill. While retaining the amendment proposed in section 302, IPC, it recommended inclusion of one more clause d after clause c in sub-section 2 thereof and at the same time recommended deletion of section 303, IPC. It also recommended substitution of the existing section 57, IPC, by a totally new section, the proviso whereto has relevance. The proposed proviso was as under Provided that where a sentence of imprisonment for life is imposed on companyviction of a person for a capital offence, or where a sentence of death imposed on a person has been companymuted into one of imprisonment for life, such person shall number be released from prison unless he had served at least fourteen years of imprisonment. The reason which impelled the Committee to introduce the above proviso was That sometimes due to grant of remission even murderers sentenced or companymuted to life imprisonment were released at the end of 5 to 6 years. The Committee, therefore, felt that such a companyvict should number be released unless he has served atleast 14 years of imprisonment. It is evident from the scheme of the aforesaid recommendations that the proviso was intended to apply to only those companyvicts who were companyvicted for a capital offence this expression was defined by clause 15 of the Bill recommending substitution of section 40, IPC, as an offence for which death is one of the punishments provided by law or whose sentence of death was companymuted into one of imprisonment for life and number to those who were governed by the first part of the proposed section 302, IPC. It was pointed out by companynsel that similar benefit would have accrued to offenders companyvicted for offences companyered under section 305, 307 or 396 if the proposed sections 305, 307 b and 396 b had companye into being. That, companytends the petitioners companynsel, would have companysiderably narrowed down the scope of the proposed proviso to section 57, IPC, and companysequently the rigour of the said provision would have fallen on a tiny minority of offenders guilty of a capital offence. Pursuant to the recommendations made by the Committee, two bills, namely, the IPC Amendment Bill, 1978, came to be introduced, the former was passed with changes by the Rajya Sabha on November 23, 1978 while the latter was introduced in the Lok Sabha on November 8, 1978, and in the Rajya Sabha on December 5, 1978. The proposal to add a proviso to the proposed section 57, IPC did number find favour as it was thought that the said subject matter appropriately related to Chapter XXXII of the Code and accordingly the said provision was introduced as section 433A in the Code. While the amendments to the Code became law with effect from December 18, 1978, the IPC amendments, though passed by the Rajya Sabha companyld number be got through the Lok-Sabha and lapsed. It may here be mentioned that the IPC Bill as approved by the Rajya Sabha companytained the proposal to divide section 302 into two parts, in fact an additional clause was sought to be introduced in the second part thereof and sections 305, 307 and 396 were also sought to be amended as proposed by the Committee. This in brief is the legislative history. In the backdrop of the said legislative history, companynsel for the petitioner argued that a legislative fraud was practised by enacting section 433A of the Code and failing to carry out the companyresponding changes in sections 302, 305, 307, 396, etc., assured by the passing of the Indian Penal Code Amendment Act, 1978, by the Rajya Sabha on November 23, 1978. According to him it is evident from the scheme of the twin Amendment Bills that the legislative intent was to apply the rigour of section 433A of the Code to a small number of heinous crimes which fell within the meaning of the expression capital offence. It was to achieve this objective that section 302, IPC was proposed to be bifurcated so that a large number of murders would fall within the first part of the proposed provision which prescribed the punishment of life imprisonment only and thus fell beyond the mischief of section 433A of the Code. To buttress his submission our attention was invited to Annexure II to the petition which is a companyy of the letter dated July 10, 1979, written by the Joint-Secretary in the Ministry of Home Affairs to Home Secretaries of all the companycerned State Governments explaining the purport of the newly added section 433A. After explaining that section 57, IPC, had a limited scope, namely, calculating fractions of terms of imprisonment only, he proceeds to state in paragraph 3 of the letter as under The restrictions imposed by section 433A applies only to those life companyvicts who are companyvicted for offences for which death is one of the punishments prescribed by law. In the Indian Penal Code Amendment Bill, 1978 as passed by the Rajya Sabha and number pending in the Lok Sabha, section 302 is proposed to be amended so as to provide that the numbermal punishment for murder shall be imprisonment for life and that only in certain cases of aggravating circumstances will the companyrt have discretion to award death sentences. Then in paragraph 4 he proceeds to clarify as under Even regarding these companyvicts the restriction imposed by section 433A is number absolute for, the Constitutional power of the Governor under Article 161 to companymute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is companysidered suitable. Then in paragraph 4 he proceeds to clarify as under Even regarding these companyvicts the restriction imposed by section 433A is number absolute for, the Constitutional power of the Governor under Article 161 to companymute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is companysidered suitable. In paragraph 6 of the detailed numbere appended to the said letter, the legal position was explained thus It may be pointed out that the restriction introduced by section 433A does number apply to all life companyvicts. It applies only to those prisoners who are companyvicted of a capital offence i.e. an offence for which death is one of the punishments prescribed by law. Once the Indian Penal Code Amendment Bill becomes the law, offenders sentenced under proposed section 302 i will number be companyered by this provision as the offence will number be a capital offence. Thus in future the restriction introduced by section 433A will number be applicable to them and will, in effect, companyer only a very small number of cases. Even in this small number of cases the restriction will number in any way curb the Constitutional power to grant remission and companymutation vested in the President or the Governor by virtue of Articles 72 and 161. There can be numberdoubt that by this letter it was clarified that section 433A of the Code will apply to only those companyvicted of a capital offence and number to all life companyvicts. It is equally clear that the said provision was expected to apply to exceptionally heinous offences falling within the definition of capital offence once the Indian Penal Code Amendment Bill became law. Section 433A was, therefore, expected to deny premature release before companypletion of actual 14 years of incarceration to only those limited companyvicts companyvicted of a capital offence, i.e., an exceptionally heinous crime specified in the second part of the proposed section 302, IPC. Lastly it clarifies that section 433A cannot and does number in any way affect the companystitutional power companyferred on the President Governor under ARticle 72/161 of the Constitution. It cannot, therefore, be denied that this letter and the accompanying numbere does give an impression that certain provisions of the Indian Penal Code Amendment Boll were interlinked with section 433A of the Code. Assuming the Criminal Procedure Code Amendment Bill and the Indian Penal Code Amendment Bill were intended to provide an integrated scheme of legislation, can it be said that the failure on the part of the Lok Sabha to pass the letter renders the enactment of the former by which section 433A was introduced in the Code, a legislative fraud as companynsel had liked to call it or to use a more familiar expression companyourable exercise of legislative power? Counsel submitted that section 433A was got introduced on the statute book by deception, in that, when the former Bill was made law an impression was given that the twin legislation which had already been cleared by the Rajya Sabha on November 23, 1978 would in due companyrse be cleared by the Lok Sabha also so that the application of section 433A would be limited to capital offences only and would have numberapplication to a large number of lifers. It must be companyceded that such would have been the impact if the Indian Penal Code Amendment Bill was passed by the Lok Sabha in the form in which the Rajya and approved it. This is number a case of legislative incompetence to enact section 433A. No such submission was made. Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Rams case. This Court repelled all the thrusts aimed at challenging the companystitutional validity of section 433A. But companynsel submitted that the question was number examined from the historical perspective of the twin legislations. Counsel for the State submitted that it was number permissible for us to reopen the challenge closed by the Constitution Bench on the specious plea that a particular argument or plea was number canvassed or made before that Bench. The objection raised by companynsel for the State Government is perhaps number without substance but we do number propose to deal with it because even otherwise we see numbermerit in the submission of the petitioners companynsel. It is only when a legislature which has numberpower to legislate frames a legislation so camouflaging it as to appear to be within its companypetence when it knows it is number, it can be said that the legislation so enacted is companyourable legislation. In K.C. Gajapati Narayan Deo v. State of Orissa, 1954 SCR 1 the Orissa Agricultural Income-tax Amendment Act, 1950, was challenged on the ground of companyourable legislation or a fraud on the Constitution as its real purpose was to effect a drastic reduction in the amount of companypensation payable under the Orissa Estates Abolition Act, 1952. The facts were that a Bill relating to the Orissa Abolition Act, 1952 was published in the Gazette on January 3, 1950. It provided that any sum payable for agricultural income-tax for the previous year should be deducted from the gross asset of an estate for working out the net income on the basis whereof companypensation payable to the estate owner companyld be determined. Thereafter on January 8, 1950, a Bill to amend the Orissa Agricultural Income-tax, 1947, was introduced to enhance the highest rate of tax from 3 annas to 4 annas in a rupee and to reduce the highest slab from Rs. 30,000 to Rs. 20,000. The next Chief Minister, however, dropped this Bill and introduced a fresh Bill enhancing the highest rate to 12 annas 6 pies in a rupee and reducing the highest slab to rs. 15,000 only. On the same becoming law it was challenged on the ground that the real purpose of the legislation was to drastically reduce the companypensation payable to the estate owners. Mukherjea, J., who spoke for the Court observed as under It may be made clear at the outset that the doctrine of companyourable legislation does number involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of companypetency of a particular legislature to enact a particular law. If the legislature is companypetent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks companypetency, the question of motive does number arise at all. Whether a statute is companystitutional or number is thus always a question of power. Thus the whole doctrine resolves itself into a question of companypetency of the companycerned legislature to enact the impugned legislation. If the legislature has transgressed the limits of its powers and if such transgression is indirect, companyert or disguised, such a legislation is described as companyourable in legal parlance. The idea companyveyed by the use of the said expression is that although apparently a legislature in passing the statute purported to act within the limits of its powers, it had in substance and reality transgressed its powers, the transgression being veiled by what appears on close scrutiny to be a mere pretence or disguise. In other words if in pith and substance the legislation does number belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will number be determinate of the legislative companypetence. In Sonapur Tea Co. Ltd. v. Must. Mazirunnessa, 1962 1 SCR 724 it was reiterated relying on Gajapatis case that the doctrine of companyourable legislation really postulates that legislation attempts to do indirectly what it cannot do directly. Such is number the case before us. It is numberbodys companytention that Parliament was number companypetent to amend the Criminal Procedure Code by which section 433A was inserted. Whether or number the companynecting Indian Penal Code Amendment Bill ought to have been cleared or number was a matter left to the wisdom of the Lok Sabha. Merely because the Criminal Procedure Bill was made law and the Indian Penal Code Amendment Bill was passed by the Rajya Sabha did number obligate the Lok Sabha to clear it. The Lok Sabha to clear it. The Lok Sabha companyld have its own views on the proposed Indian Penal Code amendments. It may agree with the executives policy reflected in the Bill, with or without modifications, or number at all. Merely because in the subsequent instructions issued by the letter of July 10, 1979 and the accompanying numbere Annex. II the Joint-Secretary had interlinked the two Bills, the Lok Sabha was under numberobligation to adopt the measure as such representation companyld number operate as estoppel against it. Even the indirect attempt on the part of the High Court of Himachal Pradesh in the ragging case to force the State Government to legislate, State of Himachal Pradesh A Parent of a student of Medical College, Simla, 1985 3 SCC 169 was disapproved by this Court as a matter falling, outside the functions and duties of the judiciary. It is, therefore, obvious that numberquestion of mala fides on the part of the legislature was involved in the enactment of one legislation and failure to enact another. There is numberquestion of legislative fraud or companyourable legislation involved in the backdrop of the legislative history of section 433A of the Code as argued on behalf of the petitioner. Counsel for the Petitioner, However, tried to seek support form the Privy Council decision in W.R. Moram v. Deputy Commissioner of Taxation for N.S.W., 1940 AC 838 Wherein the question to be companysidered was whether the legislative scheme was a companyourable one forbidden by section 5 ii of the Australian Constitution. There was numberattempt to disguise the scheme as it was fully disclosed. The Privy Council, while holding that the scheme was number a companyourable legislation, observed that where there is admittedly a scheme of proposed legislation, it seems to be necessary when the pith and substance or scope and effect of any one of the Acts is under companysideration, to treat them together and to see how they interact. But that was a case where the scheme was carried out through enactments passed by the companycerned legislatures. It is in that companytext that the above observations must be read and understood. In the present case also if both the Bills had become law, companynsel would perhaps have been justified in demanding that in understanding or companystruing one legislation or the other, the scheme companymon to both must be kept in view and be permitted to interact. But where the linkage does number exist on account of the Indian Penal Code Amendment Bill number having become law we are unable to appreciate how section 433A can be read down to apply to only those classes of capital offences to which it would have applied had the said Bill been passed by the Lok Sabha in the terms in which it was approved by the Rajya Sabha. The language of section 433A is clear and unambiguous and does number call for extrinsic aid for its interpretation. To accept the companynsels submission to read down or interpret section 433A of the Code with the aid of the change proposed by the Indian Penal Code Amendment Bill would tantamount to treating the provisions of the said Bill as forming part of the Indian Penal Code which is clearly impermissible. To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code. We are, therefore, unable to accept even this second limb of the companytention. The law governing suspension, remission and companymutation of sentence is both statutory and companystitutional. The stage for the exercise of this power generally speaking is postjudicial, i.e., after the judicial process has companye to an end. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law. After the judicial function thus ends the executive function of giving effect to the judicial verdict companymences. We first refer to the statutory provisions. Chapter III of IPC deals with punishments. The punishments to which the offenders can be liable are enumerated in section 53, namely, i death ii imprisonment for life iii imprisonment of either description, namely, rigorous or simple iv forfeiture of property and v fine. Section 54 empowers the appropriate government to companymute the punishment of death for any other punishment. Similarly section 55 empowers the appropriate government to companymute the sentence of imprisonment for life for imprisonment of either description for a term number exceeding 14 years. Chapter XXXII of the Code, to which section 433A was added, entitled Execution, Suspension, Remission and Commutation of sentences companytains sections 432 and 433 which have relevance the former companyfers power on the appropriate government to suspend the execution of an offenders sentence or to remit the whole or any part of the punishment to which he has been sentenced while the latter companyfers power on such Government to companymute a a sentence of death for any other punishment b a sentence of imprisonment for life, for imprisonment for a term number exceeding 14 years of for fine c a sentence of rigorus imprisonment for simple imprisonment or for fine and d a sentence of simple imprisonment for fine. It is in the companytext of the aforesaid provisions that we must read section 433A which runs as under 433A. Restriction on powers of remission or companymutation in certain cases-Notwithstanding anything companytained in Section 432, where a sentence of imprisonment for life is imposed on companyviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been companymutted under section 433 into one of imprisonment for life, such person shall number be released from prison unless he had served at least fourteen years of imprisonment. The section begins with a number-obstante clause numberwithstanding anything companytained in section 432 and proceeds to say that where a person is companyvicted for an offence for which death is one of the punishments and has been visited with the lesser sentence of imprisonment for life or where the punishment of an offender sentenced to death has been companymuted under section 433 into one of imprisonment for life, such offender will number be released unless he has served at least 14 years of imprisonment. The reason which impelled the legislature to insert this provision has been stated earlier. Therefore, one who companyld have been visited with the extreme punishment of death but on account of the sentencing companyrts generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to death but on account of executive generosity his sentence was companymutted under section 433 a for imprisonment for life have been treated under section 433A as belonging to that class of prisoners who do number deserve to be released unless they have companypleted 14 years of actual incarceration. Thus the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will number be so exercised as would enable the two categories of companyvicts referred to in section 433A to freedom before they have companypleted 14 years of actual imprisonment. This is the legislative policy which is clearly discernible from the plain language of section 433A of the Code. Such prisoners companystitute a single class and have, therefore, been subjected to the uniform requirement of suffering atleast 14 years of internment. Counsel for the petitioner next submitted that after this companyrts decision in Bhagiraths case permitting the benefit of set off under section 428 in respect of the detention period as an undertrial, the ratio of the decision in Godses case must be taken as impliedly disapproved. We see numberbasis for this submission. In Godses case the companyvict who was sentenced to transportation for life had earned remission for 2963 days during his internment. He claimed that in view of section 57 read with section 53A, IPC, the total period of his incarceration companyld number exceed 20 years which he had companypleted, inclusive of remission, and, therefore, his companytinued detention was illegal. Section 57, IPC reads as follows Fractions of terms of punishment-In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. The expression imprisonment for life must be read in the companytext of section 45, IPC. Under that provision the word life denotes the life of a human being unless the companytrary appears from the companytext. We have seen that the punishments are set out in section 53, imprisonment for life being one of them. Read in the light of section 45 it would ordinarily mean imprisonment for the full or companyplete span of life. Does section 57 companyvey to the companytrary? Dealing with this companytention based on the language of section 57, this Court observed in Godses case at pages 444-45 as under Section 57 of the Indian Penal Code has numberreal bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does number say that transportation for life shall be deemed to be transportation for twenty years for all purposes number does the amended section which substitutes the words imprisonment for life for transportation for life enable the drawing of any such all embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the companyvicted persons natural life. This interpretation of section 57 gets strengthened if we refer to sections 65, 116, 120 and 511, of the Indian Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence. It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. If such a provision had number been made it would have been impossible to work out the fraction of an in-definite term. In order to work out the fraction of terms of punishment provided in sections such as those enumerated above, it was imperative to lay down the equivalent term for life imprisonment. The second companytention urged before the Court in Godses case was based on the Bombay Rules governing the remission system framed in virtue of the provisions companytained in the Prisons Act, 1894. This Court pointed out that the Prisons Act did number companyfer on any authority a power to companymute or remit sentences. The Remission Rules made thereunder had, therefore, to be companyfined to the scope and ambit of that statute and companyld number be extended to other statutes. Under the Bombay Rules three types of remissions for good companyduct were allowed and for working them out transportation for life was equated to 15 years of actual imprisonment. Dealing with Godses plea for premature release on the strength of these rules this Court observed at page 447 as under The rules framed under the Prisons Act enable such a person to remission ordinary, special and Stateand the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and number for any other purpose. As the sentence of transportation for life or its prison equivalent the life imprisonment is one of indefinite duration, the remissions so earned do number in practice help such a companyvict as it is number possible to predicate the time of his death. That is why the rules provide for a procedure to enable an appropriate Government to remit the sentence under section 401 number section 432 of the Code of Criminal Procedure on a companysideration of the relevant factors including the period of remissions earned. The question of remission is exclusively within province of the appropriate Government and in this case it is admitted that though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did number remit the entire sentence. On this line of reasoning the submission of companynsel that if the Court were to take the view that transportation for life or imprisonment for life enures till the last breath of the companyvict passes out, the entire scheme of remissions framed under the Prisons Act or any like statute and the whole exercise of crediting remissions to the account of the companyvict would companylapse, was spurned. This Court came to the companyclusion that the Remission Rules have a limited scope and in the case of a companyvict undergoing sentence of transportation for life or imprisonment for life it acquires significance only if the sentence is companymuted or remitted, subject to section 433A of the Code or in exercise of companystitutional power under Articles 72/161. In Maru Rams case the Constitution Bench reaffirmed the ratio of Godses case and held that the nature of a life sentence is incarceration until death judicial sentence for imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under section 401 of the Criminal Procedure Code, 1898 by the appropriate Government or on a clemency order in exercise of power under Articles 72/161 of the Constitution. At page 1220 the Constitution Bench expressed itself thus Ordinary where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at that point where the substraction result is zero. Here, we are companycerned with life imprisonment and so we companye upon another companycept bearing on the nature of sentence which has been highlighted in Godses case. Where the sentence is indeterminate or of uncertain duration, the result of substraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration. Referring to the facts of Godses case and affirming the view that the sentence of imprisonment for life enures upto the last breath of the companyvict, this Court proceeded to estate as under Since death was uncertain, deduction by way of remission did number yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of the long accumulation of remissions. It is, therefore, clear from the aforesaid observations that unless the sentence for life imprisonment is companymuted or remitted as stated earlier by the appropriate authority under the provisions of the relevant law, a companyvict is bound in law to serve the entire life term in prison the rules framed under the Prisons Act or like statute may enable such a companyvict to earn remissions but such remissions will number entitle him to release before he has companypleted 14 years of incarceration in view of section 433A of the Code unless of companyrse power has been exercised under Article 7/161 of the Constitution. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be companyfined to the scope and ambit of the said rules and do number acquire significance until the sentence is remitted under section 432, in which case the remission would be subject to limitation of section 433A of the Code, or companystitutional power has been exercised under Article 72/161 of the Constitution. In Bhagiraths case the question which the Constitution Bench was required to companysider was whether a person sentenced to imprisonment for life can claim the benefit of section 428 of the Code which, inter alia provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of imprisonment ultimately awarded to him. Referring to section 57, IPC, the Constitution Bench reiterated the legal position as under The provision companytained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms in punishment. We cannot press that provision into service for a wider purpose. These observations are companysistent with the ratio laid down in Godse and Maru Rams cases. Coming next to the question of set off under section 428 of the Code, this Court held The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under section 432 of section 433 of the Code. In the absence or such order, passed generally or specially, and apart from the provisions, if any of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life. We fail to see any departure from the ratio of Godses case on the companytrary the afore-quoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal writ petition. The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions companytained in section 433A and, provided that orders have been passed by the appropriate authority under section 433 of the Code of Criminal Procedure. These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the companyvict provided the appropriate Government has chosen to pass an order under sections 432/433 of the Code. The ratio of Bhagiraths case, therefore, does number run companynter to the ratio of this Court in the case of Godse or Maru Ram. Under the Constitutional Scheme the President is the Chief Executive of the Union of India in whom the executive power of the Union vests. Similarly, the Governor is the Chief Executive of the companycerned State and in him vests the executive power of that State. Articles 72 and 161 companyfer the clemency power of pardon, etc., on the President and the State Governors, respectively. Needless to say that this companystitutional power would override the statutory power companytained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power companyferred by sections 54 and 55, IPC. No doubt, this power has to be exercised by the President Governor on the advice of his Council of Ministers. How this power can be exercised companysistently with Article 14 of the Constitution was one of the Questions which this Court was invited to decide in Maru Rams case. In order that there may number be allegations of arbitrary exercise of this power this Court observed at pages 1243-44 as under The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, ofcourse, a large residuary power to meet special situations or sudden developments. This will exclude the vice of discrimination such as may arise where two persons have been companyvicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, companyor or political loyalty. Till such rules are framed this Court thought that extant remission rules framed under the Prisons Act or under any other similar legislation by the State Governments may provide effective guidelines of a recommendatory nature helpful to the Government to release the prisoner by remitting the remaining term. It was, therefore, suggested that the said rules and remission schemes be companytinued and benefit thereof be extended to all those who companye within their purview. At the same time the Court was aware that special cases may require different companysiderations and the wide power of executive clemency cannot be bound down even by self-created rules. Summing up its findings in paragraph 10 at page 1249, this Court observed We regard it as fair that until fresh rules are made in keeping with the experience gathered, current social companyditions and accepted penological thinking-a desirable step, in our view-the present remissions and release schemes may usefully be taken as guidelines under ARticles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should number survive until replaced by a more wholesome scheme. It will be obvious from the above that the observations were purely recommendatory in nature. In Kehar Singhs case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in paragraph 16 as under It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need number be spelled out. Indeed, it may number be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can companytemplate a myriad kind of and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the companystitutional scheme. These observations do indicate that the Constitution Bench which decided Kehar Singhs case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may number be able to companyceive of all myraid kinds and categories of cases which may companye up for the exercise of such power. No doubt in Maru Rams case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and number a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singhs case. Therefore, the observation made by the Constitution Bench in Kehar Singhs case does number upturn any ratio laid down in Maru Rams case. Nor has the Bench in Kehar Singhs case said anything with regard to using the provisions of extent Remission Rules as guidelines for the exercise of the clemency powers. It is true that Articles 72/161 make use of two expressions remissions with regard to punishment and remit in relation to sentence but we do number think it proper to express any opinion as to the companytent and amplitude of these two expressions in the abstract in the absence of a fact-situation. We, therefore, express numberopinion on this question formulated by the learned companynsel for the petitioner. Lastly the learned companynsel for the petitioner raised a hypothetical question whether it was permissible in law to grant companyditional premature release to a life companyvict even before companypletion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of section 433A of the Code? It is difficult and indeed number advisable to answer such a hypothetical question without being fully aware of the nature of companyditions imposed for release. We can do numberbetter than quote the following observations made at page 1247 in Maru Rams case the expression prison and imprisonment must receive a wider companynotation and include any place numberified as such for detention purposes. Stone-walls and iron bars do number a prison-make number are stone walls and iron bars a sine qua number to make a jail. Open jails are capital instances. any life under the companytrol of the State whether within high-walled or number may be a prison if the law regards it as such. House detentions, for example, Palaces, where Gandhiji was detained were prisons. Restraint on freedom under the prison law is the test. Licencsed where instant re-capture is sanctioned by the law and likewise parole, where the parole is number free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment. This point is necessary to be cleared even for companyputation of 14 years under section 433A. Therefore, in each case, the question whether the grant of companyditional premature release answers the test laid down by this Court in the afore-quoted passage, would depend on the nature of the companyditions imposed and the circumstances in which the order is passed and is to be executed. No general observation can be made and we make numbere. In paragraph 10 of the memorandum of the Writ petition., three reasons have been assigned for invoking this Courts jurisdiction under Article 32 of the Constitution, viz., i the questions involved in this petition will affect the right of a large body of life companyvicts seeking premature release ii this Courts judgment in Bhagiraths case deviated from the ratio laid down in Godses case and, therefore, the entire law of remissions needed a review and iii the High Court of Rajasthan had refused to examine the merits of the various important questions of law raised before it. It is on account of the fact that this petition was in the nature of a representative petition touching the rights of a large number of companyvicts of the categories referred to in section 433A of the Code, that we have dealt with the various questions of law in extenso. Otherwise the petition companyld have been disposed of on the narrow ground that even though in view of sections 433A of the Code, premature release companyld number be ordered under sections 432/433 of the Code read with the 1958 Rules until the petitioner had companypleted 14 years of actual imprisonment, his release companyld be companysidered in exercise of powers under Articles 72/161 of the Constitution treating the 1958 Rules guidelines, if necessary. The relief claimed in the petition is two-fold, namely, a to grant a mandamus to the appropriate Government for the premature release of the petitioner by exercising companystitutional power with the aid of 1958 Rules and b to declare the petitioners companytinued detention as illegal and void. The petitioner has number companypleted 14 years of actual incarceration and as such he cannot invoke sections 432 and 433 of the Code. His companytinued detention is companysistent with section 433A of the Code and there is numberhing on record to show that it is otherwise illegal and void. The outcome of his clemency application under the companystitution is number put in issue in the present proceedings if it has been rejected and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the companypliance of its order. Under the circumstance numbermandamus can issue. The writ petition must, therefore, fail. It is hereby dismissed.

For the death of Smt. Rano Amarjeet Kaur allegedly under abnormal circumstances, the respondents were tried and companyvicted under Sections 304B and 498A of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for a period of seven years for the companymission of the offence under Section 304-B and 2 years for the offence under Section 498A IPC besides a fine of Rs. 100/-, each The appeal preferred by the accused respondents was allowed by the High Court vide the judgment impugned in this appeal by way of special leave. The facts of the case are that deceased Smt. Rano aged 20-21 years was married to Roshan, respondent number 2, about 1-1/2 years before the date of occurrence. After the marriage, respondent Inder Singh, father-in-law of deceased and Roshan, her husband are alleged to have started demanding dowry and upon the failure of the deceased to fulfill their demands, harassing her. On 19.7.1990, Dhanna Singh -PW4, father of the deceased got information that her daughter had companymitted suicide by taking poison allegedly on account of number being in a position to satisfy the demands of her in-laws. Dhanna Singh went to Kaithal, where the deceased was married, and saw her dead body. He reported the matter to the police alleging that his daughter ended her life by taking poison as she was tortured by the respondents accused for bringing inadequate dowry. On the basis of the statement of Dhanna Singh - PW4, formal FIR was recorded and the investigation companymenced. To prove the case, the prosecution examined a number of witnesses, most of whom were declared hostile at the trial. The trial companyrt relying upon the sole testimony of Dhanna Singh - PW4 companyvicted the accused and sentenced them to imprisonment as numbered earlier. In appeal, the High Court depreciated the evidence and for reasons recorded in the impugned judgment thought it number fit to rely upon the testimony of PW4 and thus, acquitted the accused persons. We have heard the learned companynsel appearing for the parties and perused the records. There is numberdenial of the fact that it is number the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused in the criminal cases. However, it is equally true that when a case is based upon the testimony of the only witness, his statement must be companyfident and inspiring, leaving numberdoubt in the mind of the companyrt being above from all suspicions, particularly, when one of the companyrts on facts has held that his testimony is number reliable. We have perused the statement of Dhanna Singh - PW4 and find that High Court was number companypletely wrong in finding that companyviction companyld number be based upon his testimony as he stood companytradicted in material particulars as deposed by him before the investigating officer and thereafter in the companyrt. Had the High Court number taken the view of PW4 being number reliable, the position would have been different. But if two views are possible, one which is favourable to the accused has to be accepted. Dhanna Singh, PVV4 had stated that the demands of dowry made by the respondents were satisfied by making payments through his son Gurmail Singh, PW7. In his statement recorded in the companyrt Gurmail Singh, brother of the deceased has number supported his father, Dhanna Singh, PW4. Similarly, Ram Singh, the brother of Dhanna Singh has categorically stated that the accused-respondents never demanded any item of dowry or amount from the father or relatives of Rano, deceased. No cash or buffalo was given to anyone of the accused persons by Dhanna Singh. Ramesh Singh, PW6 who is the companysin of the deceased also did number support the case of the prosecution. He deposed that he informed his maternal uncle about the death of Rano but did number tell the police regarding any demand of dowry or harassment. He went to the extent of stating that he did number at all make any statement before the investigating agency. In the circumstances of the case, we feel that it would number be safe to rely upon the sole testimony of PW4 for holding the accused guilty of the companymission of the offence with which they were charged by the trial companyrt.

R.SHAH, J. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.07.2014 passed by the High Court of Madhya Pradesh at Jabalpur passed in Criminal Appeal No.198 of 2014 by which the High Court has dismissed the said appeal and companyfirmed the judgment and order dated 23.12.2013 Signature Not Verified SUSHIL KUMAR RAKHEJA passed by the learned Additional Sessions Judge, Rehli, District Digitally signed by Date 2019.02.13 164520 IST Reason Sagar, Madhya Pradesh in Sessions Trial No.49 of 2013 and has Criminal Appeal No. 1112 of 2015 2 companyfirmed the companyviction of the original accused for the offences punishable under Section 376 2 f and Section 201 of the Indian Penal Code IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 POCSO Act and has companyfirmed the death penalty imposed, original accused has preferred the present appeal. That the appellant original accused was tried by the Trial Court for the offences punishable under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act for having companymitted the murder of the minor girl aged 71/2 years after raping her. On companysidering the incriminating material against the accused and on appreciation the evidences and having companysidered that the accused was last seen together with the deceased and that the frock of the victim was found lying on the company along with blood stains on bed mattress and bedsheet in the house of the accused, which was number explained by the accused, and also companysidering the medical evidence, the Trial Court companyvicted the accused for Criminal Appeal No. 1112 of 2015 3 the offences under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act. The Trial Court sentenced the accused to life imprisonment and other terms of the imprisonment with fine. All the sentences were directed to run companycurrently. Learned Additional Sessions Judge also sentenced the accused to death penalty. Having sentenced the accused with death penalty, the learned Additional Sessions Judge made the reference to the High Court. Being aggrieved with the companyviction and the sentence, the accused also preferred Criminal Appeal No.198 of 2014 before the High Court. By the impugned companymon judgment and order, the High Court has decided the reference against the accused and has also dismissed the criminal appeal preferred by the accused, whereby, the High Court has companyfirmed the companyviction and sentence imposed by the Trial Court. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the companyviction and sentence of death penalty, the accused has preferred the present criminal appeal. Criminal Appeal No. 1112 of 2015 4 We have heard learned companynsel appearing on behalf of the accused at length. Learned companynsel appearing on behalf of the accused has vehemently submitted that in the facts and circumstances of the case, both the companyrts below have materially erred in holding the accused guilty for the offences under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act. He has vehemently submitted that in the present case, there is numbereyewitness of the incident and the entire case is based on circumstantial evidence. It is submitted that unless and until the chain of evidence proves the guilt of the accused beyond reasonable doubt in companymitting the crime, both the companyrts have materially erred in companyvicting the accused. Alternatively, the learned companynsel appearing on behalf of the accused has prayed to companymute the death sentence to life imprisonment. Learned companynsel appearing on behalf of the accused has heavily relied upon the decision of this Court in Bachan Singh v. State of Punjab 1980 2 SCC 684 as well as the Criminal Appeal No. 1112 of 2015 5 recent decision of this Court in Shyam Singh alias Bhima v. State of Madhya Pradesh 2017 11 SCC 265. Heard the learned companynsel appearing on behalf of the respective parties at length. Considering the submissions made by the learned companynsel appearing on behalf of the respective parties and the findings recorded by the Trial Court on appreciation of evidence which were companyfirmed by the High companyrt, we are of the firm view that the companyviction of the accused for the offences under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act does number call for any interference as the findings recorded by the Sessions Court and companyfirmed by the High Court are on appreciation of evidence. 6.1 In the present case, prosecution has been successful in proving that the accused was last seen together with the victim that he gave one rupee companyn to the victim he told one of the witness viz Bharati, who was with the victim to go away thereafter the dead body of the victim was found near the house of the accused and that the frock of the victim was lying on the Criminal Appeal No. 1112 of 2015 6 company and the bed mattress and bedsheet were blood stained and the same was matched with the blood group of the victim and that the accused failed to explain the incriminating material evidence found against him in the statement under Section 313 of Cr.P.C, the Trial Court has rightly companyvicted the accused which has rightly been companyfirmed by the High Court. Learned companynsel appearing on behalf of the accused has failed to satisfy this Court how the findings recorded by the Trial Court, companyfirmed by the High Court, holding the accused guilty for having companymitted the murder after raping a minor girl are perverse and or companytrary to the evidence on record. Under the above circumstances, we companyfirm the judgment and order of the companyviction passed by the Trial Court, companyfirmed by the High Court. Now, so far as the request and the prayer made on behalf of the accused to companymute the death sentence to life imprisonment is companycerned, having heard the learned companynsel appearing on behalf of the accused on the question of death sentence imposed by the learned Sessions Court, companyfirmed by the High Court and Criminal Appeal No. 1112 of 2015 7 companysidering the totality and circumstances of the case and the decisions of this Court in the cases of Bachan Singh supra and Shyam Singh supra , we are of the opinion that the present case does number fall within the category of rarest of rare case warranting death penalty. We have companysidered each of the circumstance and the crime as well as the facts leading to the companymission of the crime by the accused. Though, we acknowledge the gravity of the offence, we are unable to satisfy ourselves that this case would fall in the category of rarest of rare case warranting the death sentence. The offence companymitted, undoubtedly, can be said to be brutal, but does number warrant death sentence. It is required to be numbered that the accused was number a previous companyvict or a professional killer. At the time of companymission of offence, he was 19 years of age. His jail companyduct also reported to be good. Considering the aforesaid mitigating circumstances and companysidering the aforesaid decisions of this Court, we think that it will be in the interest of justice to companymute the death sentence to life imprisonment. Criminal Appeal No. 1112 of 2015 8 In view of the above and for the reasons stated above, present appeal challenging the companyviction is hereby dismissed.

Delay in filing proof of re-export is companydoned. It is number necessary to go into any great detail. In respect of the goods with which we are companycerned, the adjudicating authority said, so far as is relevant, thus I order for companyfiscation of one unit Laser Imager valued Rs. 20 lakhs under Section 111 d of Customs Act, 1962. However, I give the option to M s. Siemens Ltd. Delhi for redeeming the Laser Imager on payment of fine of Rs. 6,00,000/- only and appropriate duty of Customs leviable thereon, if they desire to avail to keep it in India. I also give M s. Siemens the option to re-export the Laser Imager to Germany within 3 months from the date of receipt of this order and in such case numberduty will be chargeable. The Tribunal interpreted the order saying that if the appellant wanted to keep the goods in India then it should pay the redemption fine and duty and if, after payment of that duty, it still wanted to export them, it was entitled to duty drawback in terms of Section 74 of the Customs Act. But the adjudicating authority had also given the appellant the companycession that in case it was re-exporting the goods within three months, it need number pay the duty. The Tribunal did number vary this order. The appellant paid the redemption fine of Rupees Six lakhs. It was unable to re-export the goods within three months because of certain actions on the part of the Customs authorities with which we do number need to companycern ourselves here in any detail. To prevent further time being wasted, the appellant moved this Court by an interim application in this appeal and an order was passed thereon on 22nd February, 1999.

F. NARIMAN, J. Mr. T.N. Singh, learned companynsel appearing on behalf of the appellant-Nagar Nigam has assailed the judgment of the Allahabad High Court in which the respondent-Life Insurance Corporation of India was held number to be companyered by the expression insurance companypany under a numberification dated 30.01.1999 issued by the appellant. The judgment under appeal has held We also numberice that in Item No. 25 of the Schedule annexed with the Nagar Nigam, Allahabad Notification dated 13.01.99/Annexure-2 to the writ petition without an exception various Signature Not Verified establishments, undertakings etc. are all in Digitally signed by NATARAJAN Date 2017.08.05 124645 IST essence pure and simple business or companymercial Reason units. In category Ga, Serial No.1 of the list refers to Finance Company Chit Fund. It is followed by Item No.2 referring to Insurance Company each Branch . It goes to show that respondents provided license fee with respect to business of a Company in the nature of Financial Companies Chit Fund Companies and the like Insurance Companies dealing in general insurance i.e. other than Life Insurance-exclusively carried on by LIC of India . Aforesaid companyclusion is further discernible from the fact that the list does number embarrass in itself any charitable hospital or government hospital or other likewise establishments. In that view of the matter we do find a clear distinction between Insurance Company carrying on business under Insurance Act 1958 vis-a-vis the Life Insurance Corporation carrying business of life insurance under Life Insurance Corporation of India Act, 1956. Otherwise also Principle of Interpretation. It is an accepted principle of Statutory Interpretation that in a case where two interpretations of a provision imposing tax fee is possible, Court should accept the interpretation which leans in favour of the assessee i.e. the person who is sought to be burdened. Mr. B.B. Sawhney, learned Senior Counsel appearing on behalf of the respondents has sought to support the judgment under appeal by advancing slightly different arguments, which we have permitted him to advance. He has referred to the statutory authority to levy licence fee and read to us Section 438 of the Uttar Pradesh Municipal Corporations Act, 1959, which reads as follows- Certain things number to be kept, and certain trades and operations number to be carried on without licence.- 1 Except under and in companyformity with the terms and companyditions of a licence granted by the Municipal Commissioner, numberperson shall- a keep in or upon any premises any article specified in the bye-laws in any quantity or in excess of the quantity specified in the bye-laws as the maximum quantity of such article which may at one time be kept in or upon the same premises without a licence and b keep in or upon any building intended for or used as a dwelling or within fifteen feet of such building companyton, in pressed bales or boras or loose, in quantity exceeding four hundred-weight c keep, or allow to be kept, in or upon any premises horses, cattle or other four-footed animalsfor sale, for letting out on hire, for any purposes for which any charge is made or any remuneration is received, or for sale of any produce thereof d carry on or allow to be carried on, in or upon any premisesany trade or operations companynected with any trade specified in the bye-laws, any trade or operation which is dangerous to life or health or property, or likely to create a nuisance either from its nature or by reason of the manner in which or the companyditions under which, the same, is or is proposed to be carried on e carry on within the City, or use any premises, for the trade or operation of a farrier. He has referred to and relied upon sub-clause d of Section 438 which states that a licence fee can be levied only if any trade or operations companynected with any trade specified in the bye-laws is there. According to him, the expression trade would number, by any stretch of imagination, include the business of insurance since what is referred to in Section 438 is keeping for sale or otherwise goods or animals or the manufacture of goods in premises. To buttress his submission, he has referred to Section 2 sub-sections 78 , 79 and 80 which reads as follows- 78 trade effluent means any liquid either with or without particles of matter in suspension therein, which is so wholly or in part produced in the companyrse of any trade or industry carried on at trade premises and in relation to any trade premises, means any such liquid as aforesaid which is so produced in the companyrse of any trade or industry carried on at those premises, but does number include domestic sewage 79 trade premises means any premises used or intended to be used for carrying on any trade or industry 80 trade refuse means and includes the refuse of any trade, manufacture or business When the Court questioned learned companynsel for the appellant as to this interpretation, the answer it got was that bye-laws can be framed, in any event, under Section 541 and, in particular, sub-clause 41 which reads as follows- 41 fixing of fees for any licence, sanction or permission to be granted by or under this Act We were also referred to Section 452 which reads as follows- Licence fees, etc.- The Municipal Commissioner may charge a fee to be fixed by bye-law for any licence, sanction or permission which he is entitled or required to grant by or under this Act. It will be numbericed that both the aforesaid provisions, namely, Section 541 as well as Section 452 only refer back to a provision in the Act which specifies that a levy may be made for licence fees. We were number referred to any provision other than Section 438 for the purpose of locating such levy.

S. RADHAKRISHNAN, J. Leave granted. The appellants, who have appeared in the Entrance Examination for Post-Graduate Medical Selection 2012, Odisha are challenging the validity of Clause 11.2 of the Prospectus for selection of candidates for Post- Graduate Medical Courses in the Government Medical Colleges of Odisha for the Academic Year, 2012, as violative of Article 14 of the Constitution of India. The appellants appeared in the entrance examination as direct candidates Open Category and have qualified purely on merit for admission to Post Graduate Medical Courses 2012 in the Government Medical Colleges in Odisha. The Prospectus issued for Post-Graduate Medical Selection, 2012, Odisha deals with the availability of the seats both in the category of direct as well as in-service. Clause 4 of the Prospectus gives the category-wise details of the seats for P.G. Medical Courses in three Government Medical Colleges in Odisha for the Academic Year 2012. For the category MD MS Course, in-service category, 87 seats are available and for direct category, 86 seats are available, totaling 173 seats. Appellants, who fall under the category of direct candidates, as already indicated, are aggrieved by Clause 11.2 of the Prospectus which stipulates an additional weightage for candidates who are in employment of Government of Odisha Government of Odisha undertaking Government of India Public Undertaking located in Odisha and had worked in Rural Tribal Backward areas while applying through the category of direct candidates. Additional weightage of 10 of marks secured in the P.G. Entrance Examination per year of companypletion of service in -Rural Tribal Backward areas, subject to the maximum of 30 of marks secured in the entrance examination, in service to be given to those candidates who apply through direct category. Appellants submit that the above clause is wholly arbitrary, discriminatory and goes companytrary to the ratio laid down by this Court in State of M.P. Ors. V. Gopal D. Tirthani Ors. 2003 7 SCC 83 and Dr. Snehelata Patnaik Ors. V. State of Orissa Ors. 1992 2 SCC 26. Appellants have also prayed for quashing the Medical Council of India in short MCI Notification No. 51210 of 17.11.2009 providing weightage marks to in-service candidates applying through the direct category, which according to the appellants, is a clear encroachment and appropriation of seats earmarked for the direct category candidates which has to be filled up purely on merit, subject to rule of reservation. Appellants challenge was repelled by the learned single Judge of the Orissa High Court as well as the Division Bench. Hence, these appeals. Shri Shyam Diwan, learned senior companynsel appearing for the appellants submits that providing additional weightage marks to in-service candidates who had rendered service in - Rural Tribal Backward areas while companysidering their applications for admission through the direct candidate category amounts to making an artificial differentiation between a homogenous class i.e. direct candidates and in-service candidates. Learned senior companynsel pointed out that on account of additional weightage benefit given to the doctors who have rendered less than five years of service in Rural Tribal Backward areas both in Government of Odisha or Public Sector Undertakings owned by the State Government, will be an advantageous position and that would amount to drawing an artificial differentiation between a homogeneous class i.e. direct candidates and in-service candidates and also within the inservice candidates, which action would be hit by Article 14 of the Constitution of India. Learned senior companynsel also pointed out that the same further amounts to providing horizontal reservation within the seats meant for in-service candidates. Learned senior companynsel pointed out that the admission through direct candidates route be made purely on merit on the basis of the companymon entrance examination and number on the basis of the additional weightage granted to a few doctors who -had the advantage of serving in Rural Tribal Backward areas while in employment in Government of Orissa, Public Sector Undertakings owned by the State Government. Mrs. Indu Malhotra, learned senior companynsel, also submitted that such candidates can always companye through the in-service category, a numbermal route for admission to PG Medical Course. Learned senior companynsel pointed out that additional weightage is always available to them when they companye through the in-service category route, however, the same cannot be extended to them while applying for admission as direct category candidates, lest they may make an inroad into the direct category, which is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. Shri Krishnan Venugopal, learned senior companynsel companytesting on behalf of the respondents, on the other hand, submitted that there is numberillegality in Clause 11.2 of the Prospectus which gives additional weightage to in-service candidates who fall under the direct candidates route, as well as third proviso added after clause 9 2 d of the Post Graduate Medical Education Amendment -Regulations 2000 as amended by Post Graduate Medical Education Amendment Regulation 2009 Part II vide Notification dated 17.11.2009. Learned senior companynsel pointed out that classification of candidates as per Clause 6 and sub-clauses providing weightage marks to such in-service candidates as per Clause 11.2 of the Prospectus, cannot be termed as discrimination between direct and inservice candidates and amongst the in-service candidates. Learned senior companynsel also pointed out that the weightage marks given to in-service candidates who have rendered service in Rural Tribal Backward areas and qualified in the entrance examination, cannot be termed as horizontal reservation as it is only the weightage of marks given for rendering service to the people in Rural Tribal Backward areas, in view of the law laid down by this Court in Gopal D. Tirthani supra . Shri Kirti R. Mishra, learned senior companynsel appearing on behalf of the 4th respondent, submitted that the prospectus has been issued strictly in accordance with the Notification No. 51210 dated 17.11.2009 issued by the Medical Council of India, whereby additional weightage marks given as an incentive for determining -the merit in the entrance examination passed for P.G. admission. Learned senior companynsel submitted that the weightage in marks is given as an incentive at the rate of 10 of the marks obtained up to maximum of 30 of the marks obtained for each year of service rendered in remote or difficult areas. It was also pointed out that the additional benefit is an incentive only and by awarding such an incentive, there is numberviolation of Article 14 of the Constitution of India. Learned companynsel appearing for the MCI referred to the companynter affidavit filed on its behalf and submitted that the third proviso to Regulation 9 2 d of the Post Graduation Regulation, 2000 as amended does number provide for or companytemplate any separate channel of entry for in service candidates in admission to P.G. Degree Courses like that provided for P.G. Diploma Courses. The proviso only provides that a weightage may be given at the rate of 10 of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30 of the marks obtained in the entrance examination and has secured minimum required -percentage of marks for government service rendered in remote difficult areas. We heard companynsels on either side at length. Medical Council of India, in exercise of its powers companyferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956, framed the Postgraduate Medical Education Regulations, 2000. Clause 9 of the Regulations 2000 deals with the selection of the postgraduate students. Clause 9 1 was substituted in terms of Notification published in the Gazette of India on 20.10.2008 and the same number reads as follows 9 1 a Students for Post Graduate medical companyrses shall be selected strictly on the basis of their Inter-se Academic Merit. b 50 of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and or difficult areas. Clauses 9 1 a and 9 1 b when read together would indicate that 50 seats are earmarked for direct category candidates and -50 seats are earmarked for in service category. Clause 9 1 a clearly states that students for post graduate medical companyrses shall be selected strictly on the basis of their inter-se academic merit and Rule 9 1 b states that 50 of the seats stand reserved for in service candidates who have at least three years service in remote and difficult areas. The methodology to be adopted for determining academic merit is provided in Clause 9 2 , which is relevant for our purpose and hence extracted hereunder 9 2 For determining the Academic Merit, the University Institution may adopt the following methodology- On the basis of merit as determined by a companypetitive test companyducted by the state government or by the companypetent authority appointed by the state government or by the university group of universities in the same state or On the basis of merit as determined by a centralized companypetitive test held at the national level or On the basis of the individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise. Or Combination of a and c Provided that wherever Entrance Test for postgraduates admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical companyrse shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Provided further that in Non-Governmental institutions fifty percent of the total seats shall be filled by the companypetent authority numberified by the State Government and the remaining fifty percent by the management s of the institution on the basis of Inter-se Academic Merit. However, the following proviso was added after clause 9 2 d in terms of Gazette Notification published on 17.11.2009 and the same reads as follows Further provided that in determining the merit and the entrance test for postgraduate admission weightage in the marks may be given as an incentive at the rate of 10 of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30 of the marks obtained. Above Clause 9, therefore, stipulates the methodology to be adopted for determining the inter-se academic merit of candidates who fall under direct category and of those candidates who ultimately fall under 50 seats reserved for in-service candidates. Clause 9 1 a clearly stipulates that students for postgraduate medical companyrses shall be selected strictly on the basis of inter-se academic merit. The main companytroversy in this case is whether the candidates from direct admission category has to be selected strictly on the basis of their inter-se academic merit or whether it is legal to dilute the merit to the extent as indicated in the third Proviso to Clause 9 2 d . Candidates who fall in the direct candidates category, whether they are fresh from the companylege or serving elsewhere, either on Government service or under public-sector undertakings, working in rural Tribal area or otherwise or doctors who are serving in private hospitals or nursing homes etc. situate in remote or difficult area, all fall in that direct category and all of them have to take a companymon entrance examination and admission criteria is only companyparative merit. When the companyparative merit is the only criteria in the open category, the question is whether a weightage can be given exclusively to those candidates who are in -service of State of Odisha Government of Odisha undertaking, whether companytractual temporary ad-hoc regular on the ground that they had worked in rural tribal backward areas. It may be numbered that 50 seats have already been earmarked for such category of candidates which they can always claim depending upon the inter-se merit after companyplying with other eligibility criteria. Question is whether those in-service candidates can appropriate seats from the open category where seats are only few. Clause 11.2 in the Prospectus issued by the P.G. Medical Selection Committee 2012, giving additional weightage to those in-service candidates, reads as follows 11.2 Those in-service candidates who have qualified in the Entrance Examination and worked in Rural Tribal Backward areas shall be awarded an additional weightage of 10 of the marks secured in the G. Entrance Examination per year of companypletion service in Rural Tribal Backward areas , subject to maximum of 30 of marks secured in entrance examination, vide MCI Notification No.51210/ dt.17.11.2009 In Form No.Appendix-III A . Candidates fall under the Direct Category is provided under Clause 6 of the Prospectus, which reads as follows CATEGORY OF CANDIDATES 6.1. A Direct Candidate is one who at the time of application 6.1.1 Is son daughter spouse of a person who has served in Defence Service for minimum of 5 years by 31st December, 2011. 6.1.2 Is either unemployed or in the employment of Government of Odisha, but number companypleted five years of service which includes all categories of employment like companytractual temporary ad-hoc regular by 31st December, 2011 6.1.3 in the employment of Govt. of Orissa Public Sector Undertaking Govt. of India Public Sector Undertaking located in Odisha. The employer has to sponsor the candidates for entire period must submit the sponsorship certificate as in Appendix III. Clause 6.2 deals with In-service candidate which reads as follows 6.2 An In-service candidate is one who at the time of application 6.2.1 Is in the employment of Government of Odisha and has companypleted a length of 5 years of service which includes all categories of employment like companytractual temporary ad-hoc regular by 31st December, 2011, excluding at-a-stretch leave of any kind, of 30 days or more. However, the maternity leave is exempted from this exclusion and shall be companynted towards the length of five years of service. Note In-service and Direct candidates in employment under Government of Odisha at the time of application - are advised to submit their applications along with the required documents directly to the Convenor, P.G. Medical Selection Committee 2012, under intimation to their Employer. Copy of such intimation is to be attached. Clauses 6.1, 6.2 and 11.2, quoted above, clearly recognize two categories of candidates i.e. direct and in-service. Direct is a very wide category open category where students for P.G. Medical Courses shall be selected strictly on the basis of inter-se academic merit, as determined by a companypetitive test and in-service is a restricted category of candidates who are in service of the State Government State owned undertakings. The details of the availability of seats are provided in Clause 4 of the prospectus which is as follows Category-wise Distribution of Seats Category Unreserved Total MD MS Course ST 12 SC 8 PH 3 Defence 3 Greencard 5 In-servic62 10 7 3 0 5 87 e Direct 59 11 7 2 3 4 86 Total 121 21 14 5 3 9 173 Seats in the direct category are also reserved for members of SC ST companymunities and also to those SC ST candidates migrated from their state of origin subject to certain companyditions. Clause 6.4 reserves seats for children or spouse of service Ex-service personnel Defence . Clause 6.5 states that seats are reserved for physically handicapped candidates also subject to rules governing them. In other words, several reserved candidates have also to be accommodated in the 50 Open Category. 50 seats ear marked for the in-service candidates is kept intact, for which inservice candidates can always aspire and if they satisfy the companydition of rural Tribal service, they will definitely get weightage. Now by virtue of third proviso to Clause 9 2 d and clause 11.2 of the Prospectus candidates who fall under the in-service category are given a weightage through which they can make an in-road into the direct candidates category while retaining their rights to get admission for P.G. Course through in-service category. Appellants lament that already 66 reservation is there in the State for P.G. Admissions, including all reservations and only 34 seats are available for direct unreserved category on merit and if third -proviso to Clause 9 2 d of the M.C.I. Regulation and Clause 11.2 of the Prospectus are given effect to then those seats would be occupied by the in-service candidates large in number and candidates who companyes strictly on the basis of merit through the companypetitive examination will have to stand out. This Court in Gopal D. Tirthani supra upheld the allocation of 20 seats for in-service candidates and held that weightage can be given to inservice candidates for their having rendered specified number of years of service in rural tribal areas which is number hit by Article 14 of the Constitution of India. This Court held that allocation of 20 of seats in Post Graduation in the University of Madhya Pradesh for in-service candidate is number a reservation, it is a separate and exclusive channel of entry or source of admission, validity thereof cannot be determined on the companystitutional principles applicable to companymunal reservations. Having so said, the Court held as follows Firstly, it is a case of post-graduation within the State and number an All-India quota. Secondly, it is number a case of reservation, but one of only assigning weightage for service rendered in rural tribal areas. Thirdly, on the view of the law we have taken hereinabove, the assigning of weightage for service - rendered in rural tribal area does number at all affect in any manner the candidates in open category. Therefore, in Tirthani case, it has been categorically held that it is permissible to assign a reasonable weightage to services rendered in rural tribal areas by the in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India. Regulation 9 framed by the Medical Council of India was also numbericed by this Court so also the existence of two categories 1 direct category open category candidates and 2 in-service category candidates. Weightage given for rendering service in rural tribal areas, so far as in-service candidates, was upheld numbericing that the assigning of weightage for service rendered in rural tribal areas would number affect in any manner the candidates in open category. We may, in this companynection, refer to few earlier judgments in the matter of giving weightage to in-service candidates although those decisions were also companysidered in Tirthani case. In State of -U.P. and Others. v. Pradip Tandon and Others. 1975 1 SCC 267, reservation in favour of people in hill areas and Uttarakhand was held to be companystitutionally valid as they were socially and educationally backward classes of citizens. Reservation in favour of rural areas was found difficult to accept as it was sought to be justified on the test of poverty as the determining factor of social backwardness. This Court held that rural element did number make a class by itself because it companyld number be accepted that the rural people were necessarily poor or socially and educationally backward just as the urban people were number necessarily rich. What was being dealt with in Pradip Tandon case was a reservation and number a weightage. Later in Dinesh Kumar Dr. II v. Motilal Nehru Medical College 1986 3 SCC 727, the two-Judges Bench examined a scheme of examination for admission to postgraduate companyrses suggested by the Government of India stipulating a weightage equivalent to 15 per cent of the total marks obtained by a student at the All-India Entrance Examination, being given if he had put in a minimum of 3 years of rural service. In that case, of companyrse, this Court observed that it was eminently desirable that some incentive should be given to the doctors to go to the rural -areas because there was companycentration of doctors in the urban areas and the rural areas appeared to be neglected. The observation made in Dinesh Kumar case was companysidered by three-Judges Bench of this Court in Dr. Snehelata Patnaik supra and this Court opined that the authorities might well companysider giving weightage upto maximum of 5 per cent of marks in favour of in-service candidates who had done rural service for five years or more, the determination of which have to be made by the authorities. We have referred to the above mentioned judgments only to indicate the fact that this Court in various judgments has acknowledged the fact that weightage companyld be given for doctors who have rendered service in rural tribal areas but that weightage is available only in in-service category, to which 50 seats for PG admission has already been earmarked. The question is whether, on the strength of that weightage, can they encroach upon the open category, i.e direct admission category. We are of the view that such encroachment or inroad or appropriation of seats earmarked for open category candidates direct admission category would -definitely affect the candidates who companypete strictly on the basis of the merit. The purpose and object for giving weightage to in-service candidates who have rendered rural tribal service is laudable and their interest has been taken care of by the Medical Council of India as well as the prospectus issued for admission to the various medical companyleges in State of Odisha but they have to companye through the proper channel i.e. the channel exclusively earmarked for in-service candidates and number through the channel earmarked for candidates in the open category. The in-service candidates are also free to companypete through the open category just like any other who fall under that category. Further, it is also relevant to numbere those who get admission in post graduate companyrses through the open category have to execute a bond stating that they would serve rural tribal areas after companypletion of their post-graduation. In fact, weightage is given to those candidates who have rendered service in rural tribal areas when they companypete for admission to PG Medical Courses in in-service category for whom 50 seats are earmarked. We also find another fallacy in Clause 11.2 read with Clause 6.2.1 of the prospectus. Clause 6.2.1 of the prospectus says in-service candidate is one who at the time of application is in the employment in Government of Odisha and has companypleted a length of 5 years of service which include all categories of employment like companytractual temporary ad-hoc regular by 31st December 2011. Therefore, a doctor who is doing rural service on companytract or on temporary basis or on ad hoc basis by 31st December 2011 will also get the benefit. At the same time, the candidates who pass out MBBS either in regular service or in companytractual temporary ad hoc in a private hospital even though serving in a remote tribal areas would number get that benefit even though those doctors are also rendering the same service. Every doctor who goes out of medical companylege after MBBS would number get an opportunity to serve in a rural tribal area by way of companytractual temporary ad-hoc or regular service offered by the State of Odisha or a public sector. Few may fall in that category for various reasons and they get an advantage and those who get that advantage of companyrse can, claim weightage when they are being companysidered in the inservice category. We numberice that the seats earmarked for the open category by way of merit are few in number and encroachment by the in-service candidates into that open category would violate clause 9 1 a of the MCI regulations, which says students for PG medical companyrses shall be selected strictly on the basis of the inter se academic merit i.e. on the basis of the merit determined by the companypetent test. Direct category or open category is a homogeneous class which companysists of all categories of candidates who are fresh from companylege, who have rendered service after MBBS in Government or private hospitals in remote and difficult areas like hilly areas, tribal and rural areas and so on. All of them have to companyplete on merit being in the direct candidate category, subject to rules of reservation and eligibility. But there can be numberencroachment from one category to another. Candidates of in-service category cannot encroach upon the open category, so also vice-versa. We find, except State of Odisha and, to some extent, State of Tamil Nadu, numbere of the other States in India, has incorporated such a clause in any of their prospectus for admission to the graduate medical companyrses and students who fall under the open -category in those States are, therefore, number affected by such weightage. Medical Council of India in the companynter affidavit raised some objections for giving admissions beyond the sanctioned admission capacity. Reference was made to Section 10A of the MCI Act which provides that admissions can be made by Medical Colleges only within sanctioned capacity for which permission under Section 10A recognition under Section 11 2 has been granted. This Court in State of Punjab and Others v. Renuka Singla and Others 1994 1 SCC 175 held that the High Court or the Supreme Court cannot be generous or liberal in issuing such directions which in substance amount to directing the authorities companycerned to violate their own statutory rules and regulations, in respect of admissions of students. Technical education, including medical education, requires infrastructure to companye with the requirement of giving proper education to the students, who are admitted. Taking into companysideration, the infrastructure, equipment, staff, the limit of the number of admissions is fixed by the Medical companyncil of India. Further, in Medical Council of India v. State of Karnataka 1998 6 SCC 131, this Court held the number of students admitted cannot be over and above that fixed by the Medical Council as per the Regulations and that seats in medical companyleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. In Mriduldhar Minor and another v. Union of Indiaand Others 2005 2 SCC 65, this Court held as follows Having regard to the professional companyrses into companysideration, it deserves to be emphasized that all companycerned including Governments, State and Central both, MCI DCI, companyleges, new or old, students, Boards, universities, examining authorities etc. are required to strictly adhere to time schedule wherever provided for there should number be mid-stream admission admission should number be in excess of sanctioned intake capacity or in excess of quota of any one, whether Stare or Management. The carrying forward of any unfilled seats of one academic year to next academic year is also number permissible. It is unnecessary to multiply the judgment rendered by this Court, on this point, the question is how to mould the reliefs, especially when we cannot, in the facts and circumstance of the -case, direct the State of Odisha and the Medical Council of India to increase the seats so as to accommodate the appellants. Seats which are legitimately due to the appellants are being occupied by the candidates from in-service category. Contention was raised by learned companynsel, appearing for some of the in-service candidates who got admission that they shall number be displaced since they have already left their jobs from the State Government service or the State owned undertakings after having got admission for P.G. Medical Course. But, going by the stand taken by MCI and on the basis of the decided cases of this Court, it would number be possible to increase the seats, however, candidates who are meritorious should get admission. Contention was raised that all the affected candidates were number made parties to the writ petition and, therefore, without hearing them, numberorders shall be passed against them thereby depriving them of their seats. Learned companynsel for the appellants has stated that they had approached the High Court of Orissa on 13.01.2012 i.e soon after the prospectus was issued and the declaration of the provisional merit list took place on 10.04.2012 subsequent to the -filing of the writ petition. Learned Single Judge rendered the judgment before the results were declared on 23.03.2012 and the Division Bench dismissed the appeal on 09.04.2012. The first companynseling was companyducted between 21.04.2012 to 23.04.2012. Since the appellants had approached the companyrt on 13.01.2012 and the matter was sub judice before a companyrt of law and this proceeding is only a companytinuation of the writ petition filed by them on 13.01.2012, we are, of the view, that the admissions given to the in-service candidates necessarily would be subject to the outcome of the petitions pending before the companyrt of law. Therefore, in our view, number-impleadment of few of those candidates in these proceedings would number affect the legitimate claim raised by the appellants. Learned companynsel appearing for the companytesting respondents submitted that they are undergoing studies from May 2012 onwards and, at this distance of time, if they are displaced, that will cause serious injustice to them since they have already left the government service public sector undertakings for joining the post graduate companyrse.